People v. Montano

Appellate Division of the Supreme Court of New York

People v. Montano

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

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

DecidedApril 24, 2009

StatusPublished

This text of 61 A.D.3d 1392 (People v. Montano) 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. Montano, 61 A.D.3d 1392, 878 N.Y.S.2d 842 (N.Y. Ct. App. 2009).

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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,

[1393]*1393Supreme 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.

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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,

[1393]*1393Supreme 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.

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Bluebook (online)

61 A.D.3d 1392, 878 N.Y.S.2d 842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-montano-nyappdiv-2009.

Opinion

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