PEOPLE v. DRACH (2022)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), rendered January 20, 2017, convicting him of attempted kidnaping in the second degree, endangering the welfare of a child, public lewdness, and criminal trespass in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant allegedly approached the nine-year-old complainant as she was playing alone inside the gated front yard of her home and proceeded to grab her, show her his penis, and push and pull her toward the front gate and out onto the sidewalk.  The complainant's father, hearing the complainant's screams, came out of the house and restrained the defendant until the police arrived.  At trial, the People elicited testimony from the complainant and her father and introduced a surveillance video, as well as statements made by the defendant to the police wherein he, among other things, admitted that his penis was out of his pants, that he grabbed the complainant, and that he wanted to have sex with her.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of the crime of attempted kidnaping in the second degree beyond a reasonable doubt (see Penal Law §§ 110.00, 135.20;  § 135.00[2][a];  People v. Mutterperl, 97 A.D.3d 699, 699, 948 N.Y.S.2d 383;  People v. Antonio, 58 A.D.3d 515, 872 N.Y.S.2d 17;  People v. Cruz, 296 A.D.2d 22, 745 N.Y.S.2d 528;  People v. Cassano, 254 A.D.2d 92, 681 N.Y.S.2d 1).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's postverdict motion pursuant to CPL 330.30 was insufficient to preserve for appellate review his claim that the merger doctrine required vacatur of his conviction of attempted kidnaping in the second degree (see CPL 470.05[2];  People v. Hanley, 20 N.Y.3d 601, 964 N.Y.S.2d 491, 987 N.E.2d 268;  People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233;  People v. Mejia, 169 A.D.3d 715, 93 N.Y.S.3d 364;  People v. Richard, 30 A.D.3d 750, 817 N.Y.S.2d 698), and we decline to exercise our interest of justice jurisdiction to reach the issue (see People v. Cardona, 202 A.D.2d 602, 603, 610 N.Y.S.2d 824).

The Supreme Court properly declined to give an intoxication charge to the jury (see Penal Law § 15.25).  Viewing the evidence in the light most favorable to the defendant (see People v. Gaines, 83 N.Y.2d 925, 926–927, 615 N.Y.S.2d 309, 638 N.E.2d 954;  People v. Farnsworth, 65 N.Y.2d 734, 735, 492 N.Y.S.2d 12, 481 N.E.2d 552), there was insufficient evidence to support an inference that the defendant was so intoxicated as to have been unable to form the requisite criminal intent (see People v. Sirico, 17 N.Y.3d 744, 746, 929 N.Y.S.2d 14, 952 N.E.2d 1006;  People v. Rodriguez, 76 N.Y.2d 918, 921, 563 N.Y.S.2d 48, 564 N.E.2d 658;  People v. Arcila, 177 A.D.3d 585, 586, 113 N.Y.S.3d 715).  The defendant's contention that the court applied an incorrect legal standard to determine whether an intoxication charge was warranted is without merit (see People v. Rodriguez, 76 N.Y.2d at 920, 563 N.Y.S.2d 48, 564 N.E.2d 658;  People v. Perry, 61 N.Y.2d 849, 850–851, 473 N.Y.S.2d 966, 462 N.E.2d 143).

Furthermore, the defendant was not deprived of his right to present a defense (see People v. Young, 295 A.D.2d 631, 632, 745 N.Y.S.2d 177).  The Supreme Court providently exercised its discretion in precluding the admission of the defendant's medical records made 31 hours after his arrest on the ground that they were not relevant to the issue of whether the defendant was intoxicated at the time of the charged crimes and would have invited the jury to engage in speculation (see People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728;  People v. Westergard, 113 A.D.2d 640, 497 N.Y.S.2d 65).  Additionally, the court providently exercised its discretion in limiting re-cross-examination of a police witness (see People v. Maddery, 282 A.D.2d 761, 761, 724 N.Y.S.2d 346;  People v. Gonzalez, 131 A.D.2d 873, 874, 517 N.Y.S.2d 530).

Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) was a provident exercise of discretion, as it constituted an appropriate compromise which properly balanced the probative value of the proffered evidence against any potential prejudice to the defendant (see People v. Smith, 18 N.Y.3d 588, 593–594, 942 N.Y.S.2d 5, 965 N.E.2d 232;  People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963;  People v. Prise, 151 A.D.2d 787, 788, 543 N.Y.S.2d 117).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.