People v. Califano, 84 A.D.3d 1504 (N.Y. App. Div. 3d Dep't 2011). · Go Syfert
People v. Califano, 84 A.D.3d 1504 (N.Y. App. Div. 3d Dep't 2011). Cases Citing This Book View Copy Cite
30 citation events (30 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2011 → 2026 · click a year to view as-of
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Cited for
At page 1506 Evaluating evidence regarding defendant's intoxication and intent22 citing casesCourt — as the trier of fact — was free to reject this testimony in favor of that of the People’s witnesses (see People v Malcolm, 74 AD3d 1483, 1485 [2010],…opening of page *1506 (no citing court says what it cites this page for) · 13 listed here
  • People v. Manigault, 145 A.D.3d 1428 (N.Y. App. Div. 4th Dep't 2016).published 2 cites
    Defense counsel admitted that defendant had a prior felony conviction (see People v Califano, 84 AD3d 1504, 1506-1507 [2011], lv denied 17 NY3d 805 [2011]), and the record establishes that defendant had an opportunity to controvert the all…
  • People v. Morse, 111 A.D.3d 1161 (N.Y. App. Div. 3d Dep't 2013).published 2 cites
    Moreover, no violation of the statute occurred attributable to County Court posing some questions — in open court — to defense counsel rather than to defendant directly (see People v Califano, 84 AD3d 1504, 1506-1507 [2011], lv denied 17 N…
  • People v. Walton, 101 A.D.3d 1489 (N.Y. App. Div. 2012).published 2 cites
    Under the circumstances, we find substantial compliance with CPL 400.21 (3) (see People v Smith, 89 AD3d 1328, 1328-1329 [2011]; People v Washington, 89 AD3d at 1142; People v Calif ano, 84 AD3d 1504, 1506-1507 [2011], lv denied 17 NY3d 80…
  • People v. Spence, 101 A.D.3d 1477 (N.Y. App. Div. 2012).published 2 cites
    His further assertion that he was improperly sentenced as a second felony offender is unpreserved, and corrective action in the interest of justice is unwarranted because the claimed error was harmless oversight in light of the substantial…
  • People v. Chase, 101 A.D.3d 1141 (N.Y. App. Div. 2012).published 2 cites
    The defendant’s challenge to his adjudication as a second violent felony offender is unpreserved for appellate review (see People v Washington, 89 AD3d 1140, 1142 [2011]; People v Califano, 84 AD3d 1504, 1506 [2011]; People v Hargroves, 27…
  • People v. Harden, 99 A.D.3d 1108 (N.Y. App. Div. 3d Dep't 2012).published 2 cites
    Nor did he preserve by timely objection his further contention that the court failed to comply with the requirements of CPL 400.21 (see People v Washington, 89 AD3d 1140, 1142 [2011], lv denied 18 NY3d 963 [2012]; People v Califano, 84 AD3…
  • People v. Marshall, 96 A.D.3d 1294 (N.Y. App. Div. 3d Dep't 2012).published 2 cites
    However, this argument is encompassed by his valid appeal waiver (see People v Callahan, 80 NY2d 273, 281 [1992]; People v Korber, 89 AD3d 1543, 1544 [2011], lv denied 19 NY3d 864 [2012]; People v Taylor, 73 AD3d 1285, 1286 [2010], lv deni…
  • People v. Wiltshire, 96 A.D.3d 1227 (N.Y. App. Div. 3d Dep't 2012).published 2 cites
    Furthermore, inasmuch as defense counsel acknowledged at sentencing that he reviewed such documentation and defendant raised no challenges to the periods of incarceration listed therein, the requirements of CPL 400.21 (2) have been substan…
  • People v. Leszczynski, 96 A.D.3d 1162 (N.Y. App. Div. 3d Dep't 2012).published 2 cites
    To the extent that defendant argues that his sentence is illegal and, accordingly, that he is not required to preserve this issue, our review of the record reveals substantial compliance with CPL 400.15 and 400.16 (see People v Nieves, 2 N…
  • People v. Stanley, 93 A.D.3d 950 (N.Y. App. Div. 3d Dep't 2012).published
    Inasmuch as defendant failed to raise this issue before County Court, the matter is not preserved for our review (see People v Smith, 89 AD3d 1328 [2011]; People v Califano, 84 AD3d 1504, 1506 [2011], lv denied 17 NY3d 805 [2011]).
Show 3 more citing cases
  • People v. Smith, 89 A.D.3d 1328 (N.Y. App. Div. 3d Dep't 2011).published
    Defendant next contends that he was improperly sentenced as a second felony offender, however, that claim is unpreserved for our review by virtue of his failure to make an objection at sentencing (see People v Califano, 84 AD3d 1504, 1506…
  • People v. Washington, 89 A.D.3d 1140 (N.Y. App. Div. 3d Dep't 2011).published 2 cites
    Defendant failed to preserve this claim by objecting at the time of sentencing (see People v Califano, 84 AD3d 1504, 1506 [2011], lv denied 17 NY3d 805 [2011]; People v Carroway, 84 AD3d 1501, 1501-1502 [2011], lv denied 17 NY3d 805 [2011]…
  • People v. Ramsoondar, 2022 NY Slip Op 03768 (N.Y. App. Div. 3d Dep't 2022).published
    "Whether an individual's level of intoxication negates the element of intent to commit a crime lies within the domain of the jury as the trier of fact" ( People v Scott , 47 AD3d 1016, 1018 [2008], lv denied 10 NY3d 870 [2008] [internal qu…
At page 1505 trial, defendant was acquitted of the menacing charge, but found guilty of the weapon possession charge, and sentenced as a second felony offender to 3 to 6…2 citing casesopening of page *1505 (no citing court says what it cites this page for)
  • People v. Rivera, 101 A.D.3d 1478 (N.Y. App. Div. 2012).published 2 cites
    As a result, defendant did not preserve his challenge to the legal sufficiency of the evidence (see People v Harvey, 96 AD3d 1098 , 1099 n [2012], lv denied 20 NY3d 933 [Nov. 27, 2012]; People v Terry, 85 AD3d 1485 , 1486 [2011], lv denied…
  • People v. Purvis, 90 A.D.3d 1339 (N.Y. App. Div. 3d Dep't 2011).published
    While defendant and his friend provided a different version of the incident, the jury was able to assess their credibility and the accuracy of their account and was free to reject this testimony in favor of the People’s witnesses and their…
At page 1507 counsel was provided with a predicate felony statement and admitted, on behalf of defendant, that defendant was the person convicted of the prior felony and…1 citing caseopening of page *1507 (no citing court says what it cites this page for)
  • People v. Manford, 125 A.D.3d 1047 (N.Y. App. Div. 3d Dep't 2015).published 2 cites
    Any failure to specifically inquire if defendant wished to controvert the allegations in the statement was, in this context, harmless error (see People v Califano, 84 AD3d 1504, 1507 [2011], lv denied 17 NY3d 805 [2011]; People v Saddlemir…
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Felix J. Califano
Appellate Division of the Supreme Court of the State of New York.
May 12, 2011.
Published opinion
84 A.D.3d 1504
Peters.
Cited by 28 opinions  |  Published
Peters, J.P.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered November 30, 2009, convicting defendant following a nonjury trial of the crime of criminal possession of a weapon in the third degree.

Defendant was charged with criminal possession of a weapon in the third degree and menacing a police officer after he allegedly pursued a crowd of people with a knife outside of a club in the Village of Endicott, Broome County. Following a nonjury[*1505] trial, defendant was acquitted of the menacing charge, but found guilty of the weapon possession charge, and sentenced as a second felony offender to 3 to 6 years in prison. Defendant now appeals, and we affirm.

Defendant contends that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence, specifically claiming that his possession of the knife was both temporary and lawful and that, due to intoxication, he was unable to form the requisite intent to use the knife unlawfully. By making only a general motion to dismiss at trial, defendant failed to preserve his contention regarding the legal sufficiency of the evidence (see People v Finger, 95 NY2d 894, 895 [2000]; People v Adamek, 69 AD3d 979, 980 [2010], lv denied 14 NY3d 797 [2010]). Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict is supported by the weight of the credible evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495 [1987]).

In order to convict defendant of criminal possession of a weapon in the third degree, the People were required to prove that he possessed a knife with the intent to use it unlawfully against another (see Penal Law § 265.02 [1]; § 265.01 [2]). The trial testimony established that, while defendant and two friends were at the club, a fight broke out causing approximately 50 to 60 individuals to flee onto the street. While outside, defendant was cut on his face by an unknown person. Robert Snover, a bouncer at the club who was present at the time of the events and an acquaintance of defendant, testified that an unidentified male then ran up to defendant, handed him a knife and indicated that the person who had cut him ran in the direction of the parking lot. Defendant started running in front of the entrance to the club, screaming “who, who, who? I’ll cut you,” at which point Snover indicated to defendant that it “wouldn’t be a good idea.” According to Snover, defendant looked back at him, turned and ran towards the parking lot “swinging wildly.” When the police arrived moments later, they observed defendant holding a knife in his right hand while chasing a group of people who were “scrambling” and attempting to flee from defendant. At that point, the officers drew their weapons, repeatedly instructed defendant to drop the knife and, after defendant finally acceded to their requests, subdued him. Although Carlos Carreras, a friend who attended the club with defendant, and Elizabeth Trent, an acquaintance of defendant, provided an entirely different version of the events that transpired, testifying that defendant only picked up the knife momentarily after it dropped from his assailant’s hands, County[*1506] Court — as the trier of fact — was free to reject this testimony in favor of that of the People’s witnesses (see People v Malcolm, 74 AD3d 1483, 1485 [2010], lv denied 15 NY3d 954 [2010]; People v Britton, 27 AD3d 1014, 1015 [2006], lv denied 6 NY3d 892 [2006]; People v Bradley, 272 AD2d 635, 636 [2000]). According deference to those credibility determinations and evaluating the evidence in a neutral light (see People v Vasquez, 71 AD3d 1179, 1180 [2010], lv denied 14 NY3d 894 [2010]; People v Rosa, 57 AD3d 1018, 1020 [2008], lv denied 12 NY3d 762 [2009]), County Court’s finding that defendant’s possession of the knife was unlawful is not contrary to the weight of the evidence (see People v Trueluck, 284 AD2d 194, 195 [2001], lv denied 96 NY2d 925 [2001]).

Turning to defendant’s intoxication argument, whether an individual’s level of intoxication renders him or her unable to form the requisite intent presents questions of fact and credibility for the trier of fact to resolve (see People v Scott, 47 AD3d 1016,1018 [2008], lv denied 10 NY3d 870 [2008]; People v Clark, 241 AD2d 710, 711 [1997], lv denied 90 NY2d 1010 [1997]). Testimony was presented that defendant drank a bottle of champagne, several shots and a number of mixed drinks in the four hours prior to the fight that broke out, and defendant explained that he had no memory of the events that transpired that evening outside of the club. Several other defense witnesses testified regarding defendant’s visible intoxication on the evening at issue and the following morning. However, County Court also heard testimony from the club’s bouncers, including Snover, who explained that defendant was fully functional, aware of his surroundings and showed no signs of slurring, stumbling or walking improperly. Likewise, the arresting officers described defendant as coherent, responsive and in control of his motor coordination. On this record, we cannot say that County Court failed to accord the evidence its proper weight in determining the extent of defendant’s intoxication (see People v Scott, 47 AD3d at 1018-1019; People v Hazen, 20 AD3d 586, 588-589 [2005], lv denied 5 NY3d 806 [2005]; People v Stewart, 296 AD2d 587, 588 [2002]).

Finally, by failing to object at sentencing, defendant failed to preserve his contention that he was improperly sentenced as a second felony offender (see People v Atkinson, 58 AD3d 943, 944 [2009]; People v Robertson, 53 AD3d 791, 793 [2008], lv denied 11 NY3d 857 [2008]). In any event, the record reveals that, prior to sentencing, defendant admitted to the prior felony conviction and was made aware that he would be subject to sentencing as a second felony offender. At sentencing, defense[*1507] counsel was provided with a predicate felony statement and admitted, on behalf of defendant, that defendant was the person convicted of the prior felony and that the prior felony conviction was neither illegally nor unconstitutionally obtained. Furthermore, defendant makes no challenge to the validity of the prior conviction. Based upon these circumstances, we find substantial compliance with CPL 400.21 (3) and the court’s failure to inquire as to whether defendant wished to controvert the allegations of the statement was harmless oversight (see People v Ellis, 53 AD3d 776, 777 [2008]; People v Saddlemire, 50 AD3d 1317, 1317 [2008]; People v Ochs, 16 AD3d 971, 971-972 [2005]).

Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.