People v. Perry

| NY | Feb 21, 1984

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and a new trial ordered. The trial court’s refusal to charge on intoxication denied defendant his right to have the jury properly consider the effect intoxication could have on the element of intent (Penal Law, § 15.25). A charge on intoxication 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 Orr, 43 AD2d 836, affd 35 NY2d 829; see, also, People v Lee, 35 NY2d 826). On the present record, although defendant testified that he was aware of his actions, there is undisputed evidence of defendant’s intoxication at the time of the commission of the crime. Therefore, the trial court’s failure to charge on intoxication constitutes reversible error.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered in a memorandum.