People v. Perry

• Decision Date: 21 February 1984
• Citation: 462 N.E.2d 143,473 N.Y.S.2d 966,61 N.Y.2d 849
• Parties: , 462 N.E.2d 143 The PEOPLE of the State of New York, Respondent, v. Robert PERRY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 966

473 N.Y.S.2d 966

61 N.Y.2d 849, 462 N.E.2d 143

The PEOPLE of the State of New York, Respondent, v. Robert PERRY, Appellant.

Court of Appeals of New York.

Feb. 21, 1984.

[61 N.Y.2d 850] John L. Perticone, Acting Public Defender (Kenneth Ira Krigstein, Asst. Public Defender, of counsel), for appellant.

Patrick H. Mathews, Dist. Atty., Binghamton (Joann Rose Parry, Binghamton, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 96 A.D.2d 763, 465 N.Y.S.2d 795, 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, 350 N.Y.S.2d 750, affd. 35 N.Y.2d 829, 362 N.Y.S.2d 862, 321 N.E.2d 783; see, also, People v. Lee, 35 N.Y.2d 826, 362 N.Y.S.2d 860, 321 N.E.2d 781). 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.

COOKE, C.J., and JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE, JJ., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered in a memorandum.