57 A.D.2d 655 | N.Y. App. Div. | 1977
Appeal from a judgment of the County Court of Chemung County, rendered May 21, 1976, upon a verdict convicting defendant of the crimes of burglary in the third degree and petit larceny. Some time after midnight on August 30, 1975, the defendant was seen by an acquaintance to exit from a garage with a snowblower owned by postal authorities, place it on his truck, and drive away. It was recovered later that same day from behind defendant’s residence. The defendant at first volunteered that he had purchased the machine from one Arnold, but in a later written statement explained that he had taken it as a gag or practical joke with no intent to steal or profit from his act, thinking it belonged to one Barnes. The jury was obviously unimpressed by either of these conflicting accounts and we conclude that his guilt stands established by overwhelming proof. Given the range of defendant’s extensive prior criminal involvement, we find no abuse of discretion attending the sentence imposed by the trial court and, in the ordinary case, would affirm this judgment without further comment. However, defendant also asserts that the trial court erred in its instructions to the jury and, since we agree, it becomes necessary to consider whether a new trial is warranted. There was some evidence that the defendant had been drinking before this incident and the trial court correctly employed the language of section 15.25 of the Penal Law in advising the jury on the subject during its main charge. In response to an oral request of the prosecutor to charge that an individual’s intoxication must proceed to the point of unconsciousness before it could negate the
