PEOPLE v. TRIBUNELLA (2008)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10 [1] ).   We agree with defendant that reversal is required based on Supreme Court's refusal to give an intoxication charge.  “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. Perry, 61 N.Y.2d 849, 850, 473 N.Y.S.2d 966, 462 N.E.2d 143;  see People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954).   Viewing the evidence in the light most favorable to defendant, as we must (see Gaines, 83 N.Y.2d at 926-927, 615 N.Y.S.2d 309, 638 N.E.2d 954), we conclude that he established his entitlement to the charge.   The testimony that defendant left a bar shortly before it closed for the night, was “extremely intoxicated,” smelled of alcohol, was at times incoherent, and was physically impaired by his intoxication was sufficient to meet the “relatively low threshold” for entitlement to an intoxication charge (People v. Rodriguez, 76 N.Y.2d 918, 920, 563 N.Y.S.2d 48, 564 N.E.2d 658;  cf. People v. Shaw, 8 A.D.3d 1106, 1106-1107, 778 N.Y.S.2d 251, lv. denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837;  People v. Hill, 255 A.D.2d 969, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1050, 685 N.Y.S.2d 428, 708 N.E.2d 185).

In light of our determination that a new trial is warranted, we need not reach defendant's remaining contention.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

MEMORANDUM: