People v. Montano

61 A.D.3d 1392, 878 N.Y.S.2d 842

Opinion

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.

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 [1]). 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 [1984]). 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 [2004], lv denied 3 NY3d 681 [2004]). Present—Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.