PEOPLE v. GARY

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert GARY, Defendant-Appellant.

Decided: November 15, 2002

Present PIGOTT, JR., P.J., PINE, WISNER, KEHOE, and GORSKI, JJ. Frank H. Hiscock Legal Aid Society, Syracuse (Gerald T. Barth of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

On appeal from a judgment convicting him of assault in the second degree (Penal Law § 120.05[3] ), obstructing governmental administration in the second degree (§ 195.05), unlawful possession of marihuana (§ 221.05), and three counts of disorderly conduct (§ 240.20[1], [2], [5] ), defendant contends that he was deprived of effective assistance of counsel by defense counsel's failure to request a charge on the defense of intoxication.   We disagree.   A defense of intoxication would have been inconsistent with the proffered defense of justification, which was based on defendant's statements following the incident to the effect that he had bitten the police officer to defend himself against an unprovoked beating (see People v. Natal, 102 A.D.2d 496, 502-504, 478 N.Y.S.2d 889, affd. 66 N.Y.2d 802, 497 N.Y.S.2d 909, 488 N.E.2d 839;  see also People v. Barrentine, 112 A.D.2d 440, 441, 492 N.Y.S.2d 100).   Moreover, a defense of intoxication would have been inconsistent with defendant's statement that he had consumed only a few sips of beer.  “[I]t was entirely reasonable for counsel to pursue a defense consistent with defendant's prior statements” (Natal, 102 A.D.2d at 504, 478 N.Y.S.2d 889).   Thus, defendant was not deprived of effective assistance of counsel as a result of defense counsel's failure to pursue an intoxication defense or request an intoxication charge (see People v. Jaworski, 296 A.D.2d 597, 744 N.Y.S.2d 575;  People v. Galusha, 286 A.D.2d 933, 731 N.Y.S.2d 414, lv. denied 97 N.Y.2d 704, 739 N.Y.S.2d 104, 765 N.E.2d 307;  People v. Keller, 175 A.D.2d 312, 313-314, 572 N.Y.S.2d 404, lv. denied 78 N.Y.2d 1128, 578 N.Y.S.2d 885, 586 N.E.2d 68;  see generally People v. Henry, 95 N.Y.2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584).

Contrary to defendant's contentions, the evidence is legally sufficient to support the conviction of assault in the second degree (see People v. Spinks, 244 A.D.2d 921, 922, 665 N.Y.S.2d 246;  People v. Johnson, 115 A.D.2d 330, 331, 495 N.Y.S.2d 847;  see also People v. Douglas, 143 A.D.2d 452, 453, 532 N.Y.S.2d 446), obstructing governmental administration in the second degree (see Matter of Davan L., 91 N.Y.2d 88, 90-91, 666 N.Y.S.2d 1015, 689 N.E.2d 909;  People v. Drayton, 270 A.D.2d 826, 705 N.Y.S.2d 317, lv. denied 95 N.Y.2d 834, 713 N.Y.S.2d 141, 735 N.E.2d 421;  People v. Meath, 219 A.D.2d 838, 632 N.Y.S.2d 1014), and disorderly conduct (see People v. Iannelli, 69 N.Y.2d 684, 685, 512 N.Y.S.2d 16, 504 N.E.2d 383, cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673;  People v. King, 224 A.D.2d 547, 548, 638 N.Y.S.2d 342;  see generally People v. Tichenor, 89 N.Y.2d 769, 776-777, 658 N.Y.S.2d 233, 680 N.E.2d 606, cert. denied 522 U.S. 918, 118 S.Ct. 307, 139 L.Ed.2d 237).

Defendant has failed to preserve for our review his contention that County Court failed to respond meaningfully to the jury's request for the reading of certain testimony (see People v. Palmer, 290 A.D.2d 224, 225, 735 N.Y.S.2d 121, lv. denied 97 N.Y.2d 759, 742 N.Y.S.2d 619, 769 N.E.2d 365;  People v. Miller, 286 A.D.2d 981, 730 N.Y.S.2d 617, lv. denied 97 N.Y.2d 657, 737 N.Y.S.2d 58, 762 N.E.2d 936;  People v. Baldwin, 272 A.D.2d 476, 708 N.Y.S.2d 318, lv. denied 95 N.Y.2d 863, 715 N.Y.S.2d 217, 738 N.E.2d 365;  People v. Shaw, 158 A.D.2d 923, 551 N.Y.S.2d 87, lv. denied 76 N.Y.2d 743, 558 N.Y.S.2d 904, 557 N.E.2d 1200), and in any event the record is insufficient to enable us to review that contention.

Defendant was not deprived of a fair trial by prosecutorial misconduct on summation (see People v. O'Donnell, 295 A.D.2d 936, 937, 744 N.Y.S.2d 600;   People v. White, 291 A.D.2d 842, 737 N.Y.S.2d 181, lv. denied 98 N.Y.2d 656, 745 N.Y.S.2d 515, 772 N.E.2d 618;  People v. Casillas, 289 A.D.2d 1063, 1064-1065, 736 N.Y.S.2d 207, lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358).

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

MEMORANDUM: