People v. Masi

154 A.D.2d 623, 546 N.Y.S.2d 453, 1989 N.Y. App. Div. LEXIS 13516

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered August 14, 1987, convicting him of attempted burglary in the second degree and criminal trespass in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The theory of the defense was one of intoxication (see, Penal Law § 15.25), and to this end the defense counsel, on summation, stressed the evidence of the defendant’s intoxication from drugs and emphasized that the defendant had told doctors after his arrest that he had taken drugs. When evaluated within this context (see, People v Street, 124 AD2d 841), the prosecutor’s remark during his summation that the defendant’s intoxication was voluntary was proper. Not only was there a basis for the comment in the evidence, but it was also a fair response to the argument of the defendant’s attorney.

We note that the defendant’s contention regarding the propriety of the court’s charge on intoxication has not been preserved for appellate review because the defendant failed to either object or request curative instructions (see, CPL 470.05 [2]). In any event, the contention is without merit since the court adequately charged the jury on the defense of intoxication (see, 1 CJI[NY] 9.46). Mangano, J. P., Thompson, Eiber and Balletta, JJ., concur.