         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1372
KA 11-01297
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHANE M. WOLFF, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered June 7, 2011. The judgment convicted defendant,
upon a jury verdict, of criminal contempt in the first degree and
harassment in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of criminal contempt in the first degree (Penal Law § 215.51
[b] [v]) and harassment in the second degree (§ 240.26 [1]), defendant
contends that County Court erred in refusing to charge criminal
contempt in the second degree (§ 215.50 [3]) as a lesser included
offense of criminal contempt in the first degree. We reject that
contention. “There is no reasonable view of the evidence that would
support a finding that defendant ‘committed the lesser offense but not
the greater’ ” (People v Sullivan, 284 AD2d 917, 918, lv denied 96
NY2d 942, reconsideration denied 97 NY2d 658, quoting People v Glover,
57 NY2d 61, 63; see People v Wilson, 55 AD3d 1273, 1274, lv denied 11
NY3d 931).

      Defendant failed to preserve for our review his contention that
he was deprived of a fair trial by the prosecutor’s alleged misconduct
during cross-examination and on summation. Defendant either failed to
object to the allegedly improper conduct (see People v Kidd, 265 AD2d
859, 859, lv denied 94 NY2d 824) or he “failed to explain the basis
for his general objection[s]” (People v Bratcher, 291 AD2d 878, 879,
lv denied 98 NY2d 673; see People v Tonge, 93 NY2d 838, 839-840;
People v Antonio, 255 AD2d 449, 450, lv denied 93 NY2d 850). We
decline to exercise our power to review defendant’s contention as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]).
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                                                         KA 11-01297

     We reject defendant’s further contention that the court erred in
allowing the People to present evidence of two of his prior acts of
domestic violence against the victim. The evidence was properly
admitted because it was relevant to provide background information
concerning the context and history of defendant’s relationship with
the victim (see People v Perez, 67 AD3d 1324, 1325-1326, lv denied 13
NY3d 941), and it was relevant to the issue whether defendant intended
to harass and annoy her (see People v Crump, 77 AD3d 1335, 1336, lv
denied 16 NY3d 857). Furthermore, its probative value exceeded its
potential for prejudice (see id.; People v Kelly, 71 AD3d 1520, 1521,
lv denied 15 NY3d 775; see generally People v Molineux, 168 NY 264,
293-294).

     Defendant next contends that the court erred in failing to
discharge a sworn juror. To the extent that defendant’s contention is
preserved for our review (see CPL 470.05 [2]), it is without merit.
On the record before us, it cannot be said that the court should have
been “convinced” (People v Buford, 69 NY2d 290, 299), based upon the
responses of the juror upon questioning by the court and both the
prosecutor and defense counsel, that the juror’s family circumstances
rendered him “unavailable for continued service” or that he was
“grossly unqualified to serve in the case” because of his passing
familiarity with defendant (CPL 270.35 [1]; see People v Telehany, 302
AD2d 927, 928).

      We agree with defendant, however, that the court erred in
refusing to give an intoxication charge. “An intoxication charge is
warranted if, viewing the evidence in the light most favorable to the
defendant, ‘there is sufficient evidence of intoxication in the record
for a reasonable person to entertain a doubt as to the element of
intent on that basis’ ” (People v Sirico, 17 NY3d 744, 745, quoting
People v Perry, 61 NY2d 849, 850; see People v Gaines, 83 NY2d 925,
927; see also People v Tribunella, 49 AD3d 1184, 1185). “A defendant
may establish entitlement to such a charge ‘if the record contains
evidence of the recent use of intoxicants of such nature or quantity
to support the inference that their ingestion was sufficient to affect
defendant’s ability to form the necessary criminal intent’ ” (Sirico,
17 NY3d at 745, quoting People v Rodriguez, 76 NY2d 918, 920).
“Although a ‘relatively low threshold’ exists to demonstrate
entitlement to an intoxication charge, bare assertions by a defendant
concerning his intoxication, standing alone, are insufficient” (id. at
745).

     Here, the victim testified that, several hours before defendant
violated the order of protection by harassing her, she and defendant
consumed heroin and marihuana and defendant consumed alcohol, and that
she was still “high” when the incident occurred. Defendant testified
that he and the victim had used heroin and marihuana on the night in
question, and that he drank approximately four 12-ounce cans of beer.
That evidence, viewed in the light most favorable to defendant, was
sufficient to meet the relatively low threshold for entitlement to an
intoxication charge (see generally Sirico, 17 NY3d at 745-746).

     We also agree with defendant that the court erred in refusing to
                                 -3-                          1372
                                                         KA 11-01297

give a voluntariness charge with respect to statements he made to the
police. The court denied defendant’s request on the sole ground that
it had ruled at a pretrial Huntley hearing that the statements were
admissible at trial. That was not a proper ground for denying
defendant’s request at trial for the voluntariness charge. Indeed,
CPL 710.70 (3) expressly provides that, even where a court denies a
defendant’s pretrial motion to suppress statements, that does not
preclude the defendant “from attempting to establish at a trial that
evidence introduced by the people of a [pretrial] statement made by
him [or her] should be disregarded by the jury . . . on the ground
that such statement was involuntarily made within the meaning of [CPL]
section 60.45.” The statute further provides that, “[i]n the case of
a jury trial, the court must submit [the issue of voluntariness] to
the jury under instructions to disregard such evidence upon a finding
that the statement was involuntarily made” (see People v Graham, 55
NY2d 144, 147). Although there may have been another ground upon
which the court could have refused to give the voluntariness charge,
our review is limited to the ground relied upon by the trial court
(see People v Concepcion, 17 NY3d 192, 194-195; People v LaFontaine,
92 NY2d 470, 473-474, rearg denied 93 NY2d 849).

     We further conclude, however, that the court’s failure to charge
the jury on intoxication and voluntariness is harmless error. The
proof of defendant’s guilt is overwhelming, “and there is no
significant probability that defendant would have been acquitted but
for the error” (People v Thomas, 96 AD3d 1670, 1672, lv denied 19 NY3d
1002; see People v Greene, 186 AD2d 147, lv denied 81 NY2d 840; cf.
People v Ressler, 302 AD2d 921; see generally People v Crimmins, 36
NY2d 230, 241-242).

     Finally, given that defendant has a lengthy criminal record and
engaged in prior instances of domestic violence, we perceive no basis
to modify his sentence as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [b]).




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
