Opinion
10-27-2016
The PEOPLE of the State of New York, Respondent, v. Thomas MOULD, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant. Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., LYNCH, ROSE and AARONS, JJ.
AARONS, J.Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered August 16, 2012, upon a verdict convicting defendant of the crime of attempted kidnapping in the second degree.
Defendant was charged in a multi-count indictment stemming from a late-night incident where he pushed the victim in her car, choked her and demanded a ride. After a jury trial, defendant was found guilty of attempted kidnapping in the second degree and was subsequently sentenced, as a second felony offender, to a 10–year prison term, to be followed by five years of postrelease supervision. Defendant appeals. We affirm.
Defendant first contends that there was legally insufficient evidence to support the conviction regarding the element of intent because of his highly intoxicated condition on the night in question. Defendant, however, did not premise his dismissal motion made at the close of the People's proof on this specific ground and, therefore, this argument is not preserved for review (see People v. Greenfield, 112 A.D.3d 1226, 1226, 977 N.Y.S.2d 486 [2013], lv. denied 23 N.Y.3d 1037, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ; People v. Lucas, 25 A.D.3d 822, 823, 806 N.Y.S.2d 798 [2006], lv. denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ). We nevertheless review the evidence adduced as to each element of the crime for which defendant was convicted in light of defendant's further contention that the verdict was against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. McRobbie, 97 A.D.3d 970, 971, 949 N.Y.S.2d 249 [2012], lv. denied 20 N.Y.3d 934, 957 N.Y.S.2d 693, 981 N.E.2d 290 [2012] ). Where, as here, a contrary result would not have been unreasonable, we “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted] ).
At trial, the victim testified that she stopped at a gas station and went inside to prepay for the gas. While the victim was inside, the surveillance video depicted defendant trying to enter her vehicle but could not do so because the door was locked. When the victim returned to her car, defendant approached her and asked for the time. The victim sat in the driver's seat and looked at the clock in the car. When she turned back to defendant to tell him the time, she noticed that defendant had a cell phone and found it odd that defendant would be asking for the time. The victim nonetheless told defendant the time. As the victim began to close her car door, while she was still seated in the driver's seat, defendant pushed her in the car, put his hands around her neck and began choking her. Defendant also demanded a ride and threatened to kill her. A struggle in the car ensued with the victim screaming for help. Realizing that no one could hear her, the victim eventually stopped screaming and tried to calm defendant down. The victim told defendant that there were cameras watching and that she would not call the police if he let her go. Defendant and the victim subsequently stopped fighting and defendant exited the car. After reporting the incident to the police, defendant was spotted approximately half a mile away from the gas station and arrested. Based on the foregoing and viewing the evidence in a neutral light, we conclude that the weight of the evidence amply supports the jury's verdict (see People v. Dolan, 51 A.D.3d 1337, 1338–1339, 858 N.Y.S.2d 490 [2008], lv. denied 12 N.Y.3d 757, 876 N.Y.S.2d 709, 904 N.E.2d 846 [2009] ; People v. Heath, 49 A.D.3d 970, 972, 853 N.Y.S.2d 400 [2008], lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449 [2008] ).
Regarding defendant's contention that he was highly intoxicated during the incident, “whether an individual's level of intoxication negates the element of intent to commit a crime lies within the domain of the jury as the trier of fact” (People v. Kenyon, 108 A.D.3d 933, 939, 970 N.Y.S.2d 638 [2013] [internal quotation marks, brackets and citations omitted], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ). To that end, the officer who arrested defendant testified that while he smelled alcohol on defendant's breath, his speech was not slurred nor did he appear to be uncoordinated. Coupled with the jury's observation of defendant in the surveillance video, the jury was free to determine whether the extent of defendant's intoxication negated the element of intent and, by its verdict, it obviously rejected defendant's claim on this issue (see People v. Rolfe, 83 A.D.3d 1217, 1218, 920 N.Y.S.2d 853 [2011], lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ; People v. Hazen, 20 A.D.3d 586, 588–589, 799 N.Y.S.2d 596 [2005], lv. denied 5 N.Y.3d 806, 803 N.Y.S.2d 35, 836 N.E.2d 1158 [2005] ).
We also reject defendant's renunciation argument. The trial evidence establishes that only after the victim stopped screaming and resisting and told him that cameras were watching did defendant stop assailing the victim (see People v. Dolan, 51 A.D.3d at 1339–1340, 858 N.Y.S.2d 490 ; People v. Jenks, 239 A.D.2d 673, 675–676, 657 N.Y.S.2d 229 [1997] ). Under these circumstances and notwithstanding defendant's apology to the victim, we cannot conclude that defendant ended his attack “because he had a change of heart and, for that reason alone, voluntarily abandoned his intention to abduct the victim” (People v. Dolan, 51 A.D.3d at 1340, 858 N.Y.S.2d 490 ).
Defendant's assertion that the photo array was unduly suggestive because his photograph was brighter than the other photographs is without merit (see People v. Evans, 137 A.D.3d 1683, 1683, 28 N.Y.S.3d 199 [2016], lvs. denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016] ). Viewing the array as a whole, the shading of defendant's photograph does not impermissibly draw attention to him (see People v. Fernandez, 30 A.D.3d 626, 627, 815 N.Y.S.2d 358 [2006] ; People v. Davis, 18 A.D.3d 1016, 1017–1018, 795 N.Y.S.2d 785 [2005], lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005] ). In any event, any error was harmless in light of the in-court identification of defendant by the victim and the surveillance video depicting defendant as the assailant (see People v. Williams, 11 A.D.3d 810, 811–812, 784 N.Y.S.2d 185 [2004], lv. denied 4 N.Y.3d 769, 792 N.Y.S.2d 13, 825 N.E.2d 145 [2005] ; People v. Brooks, 210 A.D.2d 800, 802, 621 N.Y.S.2d 701 [1994], lv. denied 85 N.Y.2d 906, 627 N.Y.S.2d 329, 650 N.E.2d 1331 [1995] ).
We also reject defendant's claim that County Court's Sandoval ruling was erroneous. County Court allowed the People to inquire of defendant, if he testified, whether he was convicted of burglary, robbery and endangering the welfare of an incompetent person. These convictions were neither too remote in time nor similar to the charged crimes and were probative of defendant's credibility and willingness to put his interests above those of society (see People v. Victor, 139 A.D.3d 1102, 1109–1110, 31 N.Y.S.3d 257 [2016] ; People v. Malak, 117 A.D.3d 1170, 1174–1175, 984 N.Y.S.2d 666 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 12, 25 N.E.3d 349 [2014] ; People v. Woodard, 93 A.D.3d 944, 946, 939 N.Y.S.2d 648 [2012], lv. denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ). Furthermore, County Court fashioned an appropriate balance by precluding the People from asking about the facts underlying these convictions. As such, we perceive no abuse of discretion in County Court's Sandoval compromise (see People v. Lloyd, 118 A.D.3d 1117, 1122, 987 N.Y.S.2d 672 [2014], lv. denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ).
Finally, we have examined defendant's argument that the imposed sentence was harsh and excessive and find it to be without merit (see People v. Lee, 129 A.D.3d 1295, 1300, 13 N.Y.S.3d 581 [2015], lv. denied 27 N.Y.3d 1001, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; People v. Newkirk, 75 A.D.3d 853, 857–858, 906 N.Y.S.2d 133 [2010], lv. denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ).
ORDERED that the judgment is affirmed.
GARRY, J.P., EGAN JR., LYNCH and ROSE, JJ., concur.