PEOPLE v. MONTANO (2009)

 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 N.Y.2d 849, 850, 473 N.Y.S.2d 966, 462 N.E.2d 143).   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 A.D.3d 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).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: