People v. Gaines

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

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 920; see also, People v Iturrino, 117 AD2d 502). Concur— Ellerin, Ross, Asch and Kassal, JJ.