People v. Gaines

Appellate Division of the Supreme Court of New York

People v. Gaines

195 A.D.2d 383, 600 N.Y.S.2d 232, 1993 N.Y. App. Div. LEXIS 7260

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 15, 1993

StatusPublished

This text of 195 A.D.2d 383 (People v. Gaines) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Gaines, 195 A.D.2d 383, 600 N.Y.S.2d 232, 1993 N.Y. App. Div. LEXIS 7260 (N.Y. Ct. App. 1993).

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Opinions

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered October 28, 1991, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of imprisonment of 3 Vi to 7 years, affirmed.

Defendant argues that his request for an intoxication instruction (Penal Law § 15.25) should have been granted given his testimony that he may have lost control and hit the victim because he had "had a couple of drinks” and "just got ripped off”, and the testimony of one of the arresting officers that defendant had glassy eyes and smelled of alcohol. We disagree. Defendant’s testimony is at best equivocal, attributing the assault in part to his anger at being "ripped off”, and there is no evidence of the type or size of the drinks defendant consumed or when he consumed them; indeed, defendant gave detailed testimony of the events that occurred before, during, and after the assault (see, People v Rodriguez, 76 NY2d 918). Viewed as a whole, there was not " 'sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis’ ” (supra, at [384]*384920; see also, People v Iturrino, 117 AD2d 502). Concur— Ellerin, Ross, Asch and Kassal, JJ.

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Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered October 28, 1991, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of imprisonment of 3 Vi to 7 years, affirmed.

Defendant argues that his request for an intoxication instruction (Penal Law § 15.25) should have been granted given his testimony that he may have lost control and hit the victim because he had "had a couple of drinks” and "just got ripped off”, and the testimony of one of the arresting officers that defendant had glassy eyes and smelled of alcohol. We disagree. Defendant’s testimony is at best equivocal, attributing the assault in part to his anger at being "ripped off”, and there is no evidence of the type or size of the drinks defendant consumed or when he consumed them; indeed, defendant gave detailed testimony of the events that occurred before, during, and after the assault (see, People v Rodriguez, 76 NY2d 918). Viewed as a whole, there was not " 'sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis’ ” (supra, at [384]*384920; see also, People v Iturrino, 117 AD2d 502). Concur— Ellerin, Ross, Asch and Kassal, JJ.

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195 A.D.2d 383, 600 N.Y.S.2d 232, 1993 N.Y. App. Div. LEXIS 7260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gaines-nyappdiv-1993.

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