From Casetext: Smarter Legal Research

People v. Montano

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 24, 2009
61 A.D.3d 1392 (N.Y. App. Div. 2009)

Opinion

No. KA 05-00504.

April 24, 2009.

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered January 20, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (GRAZINA MYERS OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.

Present: Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.


It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05). Contrary to the contention of defendant, Supreme Court properly denied his request for an intoxication charge. Such a charge "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 Perry, 61 NY2d 849, 850). Here, there was no such evidence, i.e., there was no evidence "'concerning the number of drinks consumed by defendant; the time period during which he may have consumed them; whether the drinks contained alcohol; or the physical effects, if any, that the consumption of alcohol may have had on defendant's behavior or mental state'" ( People v Shaw, 8 AD3d 1106, 1107, lv denied 3 NY3d 681).


Summaries of

People v. Montano

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 24, 2009
61 A.D.3d 1392 (N.Y. App. Div. 2009)
Case details for

People v. Montano

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GREGORY A. MONTANO…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 24, 2009

Citations

61 A.D.3d 1392 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 3283
878 N.Y.S.2d 842

Citing Cases

People v. Montano

July 22, 2009. Appeal from the 4th Dept: 61 AD3d 1392 (Monroe). Ciparick,…