Jury Should Have Been Instructed on Intoxication Where an Element of Some of the Charged Offenses Could Have Been Negated by Defendant’s Intoxication

The Second Department determined defendant’s conviction on some of charged offenses must be reversed because the trial judge erroneously refused defendant’s request for a charge on intoxication. There was sufficient evidence to support the conclusion defendant was highly intoxicated when he broke into two apartments from which nothing was stolen, which may have negated the intent element of some of the charges:

Although intoxication is not a defense to a criminal offense, evidence of intoxication “may be offered by the defendant whenever it is relevant to negative an element of the crime charged” (Penal Law § 15.25). An intoxication charge should be issued when, viewing the evidence in a light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to an element on that basis … . The evidence of intoxication in this case met this ” relatively low threshold'” … . Contrary to the People’s contention, the error was not harmless with respect to the defendant’s convictions of burglary in the second degree and criminal mischief in the fourth degree. In order for an error to be harmless, among other things, the proof of the defendant’s guilt must be overwhelming … . Here, the proof of the defendant’s intent as to the crimes of burglary in the second degree and criminal mischief in the fourth degree was not overwhelming … . People v Velez, 2015 NY Slip Op 07691, 2nd Dept 10-21-15