People v. Dolan

51 A.D.3d 1337, 858 N.Y.S.2d 490
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 29, 2008
StatusPublished
Cited by14 cases

This text of 51 A.D.3d 1337 (People v. Dolan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dolan, 51 A.D.3d 1337, 858 N.Y.S.2d 490 (N.Y. Ct. App. 2008).

Opinions

Kavanagh, J.

Appeal from a judgment of the Supreme Court [1338]*1338(Lamont, J.), rendered April 20, 2006 in Albany County, upon a verdict convicting defendant of the crimes of attempted kidnapping in the second degree and assault in the second degree.

Admittedly distraught over the victim’s decision to end their 17-year relationship, defendant, on the day in question, followed the victim in his automobile and confronted her in a public parking lot. When the victim saw defendant approaching, she ran to her automobile, got in and closed the door. Before she could lock it, defendant forced the door open, pushed his way into the vehicle and began to assault her. The victim resisted and a violent struggle ensued. Defendant not only threatened the victim with a loaded firearm, but he repeatedly struck her about the head, face and body with the weapon as well as with his fist. During the struggle, the victim was able to get out of the vehicle. Defendant followed her and physically attempted to force her back into her automobile. The victim resisted and screamed for help shouting “he’s going to kill me.” The victim continued to resist and, as she struggled with defendant, she knocked the firearm from his hand, which fell to the ground and slid beneath her vehicle. As bystanders gathered, defendant ended the attack and fled the scene in his vehicle. A short time later, defendant was stopped by a police officer in a routine traffic stop for not wearing a seat belt. The officer, unaware of what had transpired in the parking lot, approached defendant’s vehicle and discovered that defendant, in an apparent suicide attempt, had stabbed himself in the chest with a large kitchen knife. Defendant was immediately transported to a local hospital and, while he lay unconscious and was receiving medical care, a police officer was given his clothing by hospital personnel. During a subsequent search of the clothing, the police recovered what appeared to be a suicide note.

Defendant was thereafter indicted for the crimes of attempted murder in the second degree, attempted kidnapping in the second degree, assault in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. After trial, defendant was found guilty of attempted kidnapping in the second degree and assault in the second degree, and he was sentenced to an aggregate prison term of 10½ years, with five years of postrelease supervision. Defendant now appeals from his judgment of conviction.

“Viewing the evidence in a neutral light and weighing the probative force of the conflicting testimony and the relative strength of any conflicting inferences which may be drawn, as well as giving due deference to the jury’s credibility assessments” (People v Pomoles, 49 AD3d 962, 963 [2008] [citations [1339]*1339omitted]; see People v Jackson, 48 AD3d 891, 892 [2008]), we disagree with defendant’s claim that the verdict was against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987] ; see also People v Romero, 7 NY3d 633, 643 [2006]). The testimony offered by the victim and numerous eyewitnesses detailing the circumstances of defendant’s attempt to abduct the victim and restrain her inside the vehicle provided ample evidentiary support for the jury’s verdict.

We also find no merit in defendant’s claim that Supreme Court erred by failing to charge the jury with the affirmative defense of renunciation. A defendant is entitled to the benefit of any defense that is supported by a reasonable view of the credible evidence introduced at trial, and failure to charge a jury as to the existence of such a defense, upon request, may well constitute reversible error (see People v Butts, 72 NY2d 746, 750 [1988] ). In determining whether the jury should be given a particular charge, the trial court must look to all of the evidence introduced at trial and view it in a light most favorable to the defendant (see id.; People v Watts, 57 NY2d 299, 301 [1982]). If the charge requested is supported by a reasonable view of the credible evidence, even if inconsistent or not supported by the defendant’s trial testimony, it must be given to the jury (see People v Butts, 72 NY2d at 750; People v Padgett, 60 NY2d 142, 146 [1983]). However, when, as here, the charge involved an affirmative defense for which a defendant has the burden of proof, the threshold that must be met for the charge to be properly submitted to the jury is not simply that the proposed defense is supported by a reasonable view of the evidence, but that the jury, from all that has been submitted at trial, could reasonably conclude that the defendant has proven the existence of the defense by a preponderance of the credible evidence (see People v Butts, 72 NY2d at 749 n 1; see also People v Taylor, 80 NY2d 1, 15 [1992]).

To obtain the benefit of an affirmative defense such as renunciation, defendant must prove that he voluntarily and completely renounced his attempt to abduct the victim and, in the process, acted in such a way as to clearly manifest his intention to fully and completely abandon the criminal effort (see Penal Law § 40.10 [3], [5]; People v Taylor, 80 NY2d at 12-15]). He must also prove that the renunciation was not motivated in whole or in part by a concern that he would be detected or apprehended or that the surrounding circumstances rendered the victim’s abduction more difficult (see People v Taylor, 80 NY2d at 12-15). Here, the evidence does not support the conclusion that defendant, when he ended his attack on the victim and left the scene, [1340]*1340did so because he had a change of heart and, for that reason alone, voluntarily abandoned his intention to abduct the victim. What has been established, and has not been the subject of any meaningful contradiction, is that defendant, while armed with a loaded firearm and a large knife, confronted the victim as she walked to her vehicle in a public parking lot. The victim, realizing his presence, ran to the vehicle and entered it but, before she could lock the driver’s door, defendant was able to force it open, grab her by the arm, pull out a firearm and threaten her. A violent confrontation ensued, with the victim vigorously resisting defendant’s efforts to physically force her over the vehicle’s console and into the front passenger seat. As the victim continued to resist, defendant repeatedly punched her with his fist. At some point during the encounter, the victim dislodged the firearm from defendant’s hand, causing it to fall to the ground beneath her vehicle. As the struggle continued, both inside and outside the vehicle, passersby witnessing the attack gathered and heard the victim repeatedly scream for help. It was only then, according to the victim’s testimony, that defendant “just ran ... he took off after help arrived for me.”

Four eyewitnesses to the attack also testified, three of whom actually saw defendant leave the scene.

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Bluebook (online)
51 A.D.3d 1337, 858 N.Y.S.2d 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dolan-nyappdiv-2008.