Summary
holding that defendant was entitled to a charge on intoxication, even though his claim of inebriation, negating the requisite criminal intent, was entirely inconsistent with his testimonial denial of the criminal conduct and his insistence that he was fully aware of his actions
Summary of this case from Gibbs v. DonnellyOpinion
Decided February 21, 1984
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROBERT W. COUTANT, J.
John L. Perticone, Acting Public Defender ( Kenneth Ira Krigstein of counsel), for appellant.
Patrick H. Mathews, District Attorney ( Joann Rose Parry of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, and a new trial ordered. The trial court's refusal to charge on intoxication denied defendant his right to have the jury properly consider the effect intoxication could have on the element of intent (Penal Law, § 15.25). A charge on intoxication should be given if 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 Orr, 43 A.D.2d 836, affd 35 N.Y.2d 829; see, also, People v Lee, 35 N.Y.2d 826). On the present record, although defendant testified that he was aware of his actions, there is undisputed evidence of defendant's intoxication at the time of the commission of the crime. Therefore, the trial court's failure to charge on intoxication constitutes reversible error.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed and a new trial ordered in a memorandum.