People v. BonapartePeople v. Bonaparte
Decided and Entered: July 8, 2021
Calendar Date: June 2, 2021
Before: Lynch, J.P., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.
Kindlon Law Firm, PLLC, Albany (Lee C. Kindlon of counsel), for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Aarons, J.
Appeal from a judgment of the Supreme Court (Champagne, J.), rendered April 29, 2019 in Franklin County, upon a verdict convicting defendant of the crime of assault in the second degree.
Defendant was charged by indictment with assault in the
Turning first to defendant‘s weight of the evidence argument, the People were obligated to prove that, “[f]or a purpose other than lawful medical or therapeutic treatment, [defendant] intentionally cause[d] stupor, unconsciousness or other physical impairment or injury to [the victim] by administering to [her], without [her] consent, a drug, substance or preparation capable of producing the same” (
The victim was suspicious and, in May 2016, recorded a video on her cell phone, which depicted defendant putting crushed pills in her coffee mug.1 She subsequently went to the hospital and a blood test revealed the presence of citalopram. A pharmacist testified that citalopram is an antidepressant drug that has side effects of drowsiness and sleepiness, among others, and that a person taking it may experience heart palpitations or fall asleep at inappropriate times. The victim stated that she did not voluntarily take citalopram in April or May 2016, nor was she prescribed any medication in that time. After the victim stopped taking coffee from defendant, she no longer felt any fatigue-related ailments.
In another cell phone video recording, the victim confronted defendant about being drugged. In this recording, defendant told the victim that he was trying to get the victim to take the St. John‘s Wort “so [she] wouldn‘t . . . have to take the other thing.” Defendant, for his part, testified that he did give the victim citalopram in April and May 2016 without her consent
Initially, a contrary result would not have been unreasonable had the jury credited defendant‘s testimony that he did not intend to cause any form of harm or physical impairment to the victim. The jury, however, was free to reject defendant‘s testimony and apparently did so (see People v Colon-Velazquez, 172 AD3d 1621, 1622 [2019], lv denied 34 NY3d 929 [2019]). Defendant also assails the victim as being unworthy of belief, but nothing in her testimony rendered her incredible as a matter of law (see People v Maisonette, 192 AD3d 1325, 1327 [2021]; People v Mamadou, 172 AD3d 1524, 1525 [2019], lv denied 33 NY3d 1106 [2019]). To the extent that defendant challenges the pharmacist‘s testimony, defendant thoroughly cross-examined her, and the weight to be accorded to such testimony rests within the province of the jury (see People v Civitello, 287 AD2d 784, 787 [2001], lv denied 97 NY2d 703 [2002]). Deferring to the jury‘s credibility determinations and viewing the trial evidence in a neutral light, the verdict was not against the weight of the evidence (see People v Elmy, 117 AD3d 1183, 1186 [2014]).
Defendant asserts that Supreme Court erred in its Molineux ruling. The People sought to admit evidence concerning the history of the relationship between defendant and the victim, instances of physical and emotional abuse and controlling behavior by defendant and an assault by defendant on an individual with whom the victim was having a romantic relationship. The court correctly determined that such evidence was admissible to complete the victim‘s narrative and to show defendant‘s motive and intent and that its probative value outweighed any prejudice to defendant (see People v Doyle, 48 AD3d 961, 963-964 [2008], lv denied 10 NY3d 862 [2008]; People v Tarver, 2 AD3d 968, 969 [2003]). As such, defendant‘s assertion is without merit.
Defendant further argues that the prosecutor committed misconduct by eliciting testimony from the victim that either violated Supreme Court‘s Molineux ruling or was not contained in the People‘s Molineux proffer. Contrary to defendant‘s claim, the People did not run afoul of the court‘s Molineux ruling when asking the victim when she first started dating defendant. There likewise was no misconduct when the prosecutor asked the victim on direct examination what had happened
Regarding defendant‘s argument that the prosecutor committed misconduct by improperly vouching for the credibility of the victim, the People do not dispute that the challenged comment by the prosecutor was erroneous. Notwithstanding the foregoing, Supreme Court instructed the jury to disregard the comment and to not consider it when assessing the credibility of the victim. In view of the court‘s curative instruction and the isolated nature of the remark, defendant was not deprived of a fair trial (see People v Johnson, 176 AD3d 1392, 1396 [2019], lvs denied 34 NY3d 1129, 1131 [2020]; People v Story, 81 AD3d 1168, 1169 [2011]).
Defendant contends that he was entitled to an adverse inference charge based upon the destruction of the cell phone video showing him putting the crushed citalopram in the victim‘s coffee. Defendant, however, neither requested an adverse inference charge nor objected to the charge as given. Accordingly, this contention is unpreserved (see People v Woodridge, 30 AD3d 898, 900 [2006], lv denied 7 NY3d 852 [2006]).
To that end, counsel was not ineffective for failing to request an adverse charge, as defendant claims, because there was
Defendant argues that his counsel was ineffective by having him admit on re-direct examination to putting citalopram in the victim‘s coffee. This was not, however, “an egregious[,] self-inflicted wound,” as defendant describes, inasmuch as this testimony came after the jury had already heard the cell phone recording wherein the victim confronted defendant about drugging her and the People had already cross-examined defendant about his statements therein. Counsel‘s decision to focus the jury‘s attention on more sharply contested issues — i.e., lack of intent to harm the victim and the flaws in the medical proof — can be seen as a legitimate trial strategy (see People v Tomasky, 36 AD3d 1025, 1027 [2007], lv denied 8 NY3d 927 [2007]). Furthermore, the record reflects that, immediately before defendant testified, counsel conferred with him to ensure that it was his decision to do so. Viewing counsel‘s representation as a whole, defendant was not deprived of meaningful representation (see People v Watson, 183 AD3d 1191, 1196 [2020], lv denied 35 NY3d 1049 [2020]; People v Pitt, 170 AD3d 1282, 1286 [2019], lv denied 33 NY3d 1072 [2019]).
Defendant asserts that Supreme Court considered improper matters when imposing the sentence. This argument, however, is unpreserved in the absence of an objection at the time of sentencing (see People v Rosado, 300 AD2d 838, 840-841 [2002], lv denied 99 NY2d 619 [2003]). Finally, the record fails to disclose any abuse of discretion or extraordinary circumstances that would warrant modifying the sentence in the interest of justice (see People v Cole, 177 AD3d 1096, 1103 [2019], lv denied 34 NY3d 1015 [2019]; People v Pitt, 170 AD3d at 1286). Defendant‘s remaining assertions have been considered and are unavailing.
Lynch, J.P., Clark, Reynolds Fitzgerald and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.