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People v. Montano

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 24, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GREGORY A. MONTANO, DEFENDANT-APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: MARTOCHE, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ.

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). 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, lv denied 3 NY3d 681).

20090424

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