PEOPLE v. FELICE (2007)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10[2] ) and assault in the second degree (§ 120.05[1] ).   Defendant failed to preserve for our review his contention that the conviction of assault in the first degree is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, his contention is without merit.   The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), establishes that defendant bit the victim's nose, which caused a one-inch laceration that penetrated both the skin and the nasal cavity.   At the time of trial, the victim still had a visible scar.   That evidence is legally sufficient to establish that defendant intentionally disfigured another person, both seriously and permanently (see § 120.10[2];  People v. Kenney, 291 A.D.2d 331, 737 N.Y.S.2d 856, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840;  People v. Elforte, 220 A.D.2d 332, 633 N.Y.S.2d 14, lv. denied 87 N.Y.2d 921, 641 N.Y.S.2d 603, 664 N.E.2d 514).

 Supreme Court properly denied defendant's request to charge reckless assault in the third degree (see Penal Law § 120.00[2] ) as a lesser included offense of assault in the first degree.   There is no reasonable view of the evidence that would support a finding that defendant committed the lesser offense but not the greater offense, i.e., that defendant caused physical injury but not serious physical injury (see People v. Hatten, 28 A.D.3d 1247, 813 N.Y.S.2d 343, lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804;  People v. Vasquez, 25 A.D.3d 465, 466, 810 N.Y.S.2d 124, lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983).   Defendant further contends that the court should have charged assault in the third degree as a lesser included offense of assault in the first degree because evidence of his intoxication would allow the jury to find that he acted recklessly but not intentionally.   We reject that contention (see generally People v. Butler, 84 N.Y.2d 627, 630-633, 620 N.Y.S.2d 775, 644 N.E.2d 1331;  People v. Cody, 260 A.D.2d 718, 719, 689 N.Y.S.2d 245, lv. denied 93 N.Y.2d 1002, 695 N.Y.S.2d 747, 717 N.E.2d 1084).   The evidence here supported the finding that defendant either intentionally bit the victim's nose or, by reason of intoxication, was unable to form the specific intent to do so (see People v. Echevarria, 17 A.D.3d 204, 794 N.Y.S.2d 15, affd. 6 N.Y.3d 89, 809 N.Y.S.2d 509, 843 N.E.2d 149;  Butler, 84 N.Y.2d at 634, 620 N.Y.S.2d 775, 644 N.E.2d 1331;  Cody, 260 A.D.2d at 719, 689 N.Y.S.2d 245), but it does not support the finding that defendant recklessly caused injury to the victim (see People v. Funchess, 284 A.D.2d 478, 728 N.Y.S.2d 175, lv. denied 96 N.Y.2d 939, 733 N.Y.S.2d 379, 759 N.E.2d 378).

 Defendant failed to renew his motion for a trial order of dismissal after presenting evidence and thus failed to preserve for our review his contention that, based on his level of intoxication, the evidence is legally insufficient to establish that he possessed the requisite intent to commit the crimes of which he was convicted (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   In any event, his contention is without merit (see People v. DeJesus, 16 A.D.3d 1112, 1112-1113, 790 N.Y.S.2d 900, lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 427, 830 N.E.2d 326).   Although there was evidence at trial that defendant consumed a significant quantity of alcohol on the night of the incident, “[a]n intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element of intent” (People v. Gonzalez, 6 A.D.3d 457, 773 N.Y.S.2d 889, lv. denied 2 N.Y.3d 799, 781 N.Y.S.2d 299, 814 N.E.2d 471;  see People v. LaGuerre, 29 A.D.3d 820, 822, 815 N.Y.S.2d 211, lv. denied 7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805;  People v. Jackson, 269 A.D.2d 867, 703 N.Y.S.2d 804, lv. denied 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238).   The jury's determination is supported by the record (see LaGuerre, 29 A.D.3d at 822, 815 N.Y.S.2d 211).   Contrary to the further contention of defendant, he received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Similarly, by failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve for our review his contention that the conviction of assault in the second degree is not supported by legally sufficient evidence (see Hines, 97 N.Y.2d at 61, 736 N.Y.S.2d 643, 762 N.E.2d 329).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: