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]).
-2- 1372 

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