        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

639
KA 12-00205
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RALPH A. PRINCIPIO, DEFENDANT-APPELLANT.


TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered December 22, 2011. The judgment convicted
defendant, upon a jury verdict, of menacing a police officer or peace
officer, menacing in the first degree and criminal possession of a
weapon in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of menacing a police officer or peace officer
(Penal Law § 120.18), menacing in the first degree (§ 120.13), and
criminal possession of a weapon in the third degree (§ 265.02 [1]).
Defendant failed to preserve for our review his contention that he was
deprived of a fair trial by certain remarks made by the prosecutor
during his summation (see People v Figgins, 72 AD3d 1599, 1600, lv
denied 15 NY3d 893; People v Lawson, 40 AD3d 657, 658, lv denied 9
NY3d 877). In any event, any prejudice arising from the prosecutor’s
single misstatement regarding defendant’s testimony was dispelled when
that testimony was read back to the jury during the course of its
deliberations (see generally People v Mills, 159 AD2d 437, 437, lv
denied 76 NY2d 739). Moreover, County Court expressly instructed the
jurors prior to summations that they alone were the finders of fact,
that if one of the attorneys asserted a fact not in evidence, it must
be disregarded, and that it was the jurors’ own recollection of the
evidence that controlled (see People v Lawson, 40 AD3d 657, 658, lv
denied 9 NY3d 877; People v Gibson, 18 AD3d 335, 335, lv denied 5 NY3d
789).

     Contrary to defendant’s further contention, viewing the evidence
in light of the elements of the crimes of menacing a police officer or
peace officer and menacing in the first degree as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), the verdict with regard to
                                 -2-                              639
                                                            KA 12-00205

those crimes is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). “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 Felice, 45 AD3d 1442, 1443, lv denied 10 NY3d 764
[internal quotation marks omitted]; see People v Mateo, 70 AD3d 1331,
1331, lv denied 15 NY3d 753). Affording deference to the jury’s
credibility determinations here, “we cannot say that the jury
improperly weighed the evidence in deciding in the People’s favor the
extent of defendant’s intoxication” (People v Scott, 47 AD3d 1016,
1019, lv denied 10 NY3d 870). Nor was it improper for the jury to
reject defendant’s contention that his head injury prevented him from
forming the requisite intent to commit the crimes. Further, the
weight of the evidence supports the jury’s conclusion that defendant
knew or reasonably should have known that the victim was a police
officer (see Penal Law § 120.18).

     Finally, the sentence is not unduly harsh or severe.




Entered:   June 14, 2013                        Frances E. Cafarell
                                                Clerk of the Court
