Failure to Give the Jury Instruction on Intoxication Required Reversal

The Second Department reversed defendant’s conviction, finding that the trial court erred by not giving the intoxication charge to the jury.  There was sufficient evidence defendant was so intoxicated at the time he committed the sexual offense, he could not form the requisite intent:

According to the defendant, during the night or early morning before he committed the instant offense, he finished drinking a “big” bottle of vodka. Then, within the hour leading up to the crime, he “kept pouring cognac” in his coffee and drinking it. The complainant observed the defendant drinking cognac shortly before he committed the crime, and observed that he “smelled a little bit like” alcohol. Additionally, the complainant’s mother knew that the defendant had a bottle of cognac in his possession because she had bought him a bottle as a gift.

The defendant further testified that, before he committed the acts constituting the instant offense, he “started to feel like out of [his] mind” and he did not have “control of the situation.” The complainant testified that, before the defendant committed the criminal acts against her, he said several “weird” things to her and acted in a “weird” manner. She opined that the defendant “wasn’t thinking” when he committed the instant offense.

With the foregoing in mind, we conclude that “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” … .

Contrary to the People’s contention, intent is an element of criminal sexual act in the first degree, and ” the intent required is the intent to perform the prohibited act—i.e., the intent to forcibly compel another to engage in [oral or] anal sexual conduct”‘ … . People v Velcher, 2014 NY Slip Op 02464, 2nd Dept 4-9-14