People v. Musto

243 A.D.2d 508, 664 N.Y.S.2d 960, 1997 N.Y. App. Div. LEXIS 9321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1997
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered November 20, 1995, as amended December 4, 1995, convicting him of operating a motor vehicle while under the influence of alcohol (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment as amended is affirmed.

The defendant contends that he was entitled to a charge on the defense of justification (see, Penal Law § 35.05 [2]) because, at the time he was arrested for operating a motor vehicle while under the influence of alcohol, he was driving a passenger to a hospital. However, the charge request was properly denied since there was no reasonable view of the evidence to support it (see, People v Watts, 57 NY2d 299). The passenger, who appeared to be intoxicated but not in need of medical attention, was not in any imminent danger so as to warrant the “emergency measure” (Penal Law § 35.05 [2]) of having another intoxicated person drive him to a hospital (cf., People v Maher, 79 NY2d 978). Mangano, P. J., Rosenblatt, Pizzuto and Luciano, JJ., concur.