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THERE WAS SUFFICIENT EVIDENCE, INCLUDING EXPERT EVIDENCE, OF DEFENDANT’S INTOXICATION TO RAISE A DOUBT WHETHER DEFENDANT FORMULATED THE INTENT TO COMMIT ASSAULT SECOND; THE REQUEST FOR THE INTOXICATION JURY CHARGE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined there was sufficient evidence of defendant’s intoxication to warrant the jury charge on intoxication. There was enough evidence of intoxication to support a doubt whether defendant was able to formulate the requisite intent to commit assault second:

“To warrant the submission of an intoxication charge to a jury, there must be sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” … . When making the determination as to whether an intoxication charge is warranted, the evidence must be viewed “in the light most favorable to the defendant” … . “[A]lthough a relatively low threshold exists to demonstrate entitlement to an intoxication charge” … , “[e]vidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he [or she] was intoxicated” … . * * *

Here, in proving assault in the second degree, the People had the burden of establishing that defendant possessed the intent to “cause serious physical injury to another person” … . Although there was testimony that defendant was loud and obnoxious and was arguing with the bartender about the benefit poster just prior to the altercation, there was no testimony regarding interactions between the victim and defendant just prior to the altercation, which could have left a question in the jurors’ minds as to defendant’s intent and how things escalated as quickly as they did … . The testimony at trial regarding defendant entering the bar with a beer, consuming two more drinks prior to being refused service, coupled with the surveillance footage, established that the suspect consumed multiple alcoholic beverages within a short period of time prior to the assault … . Moreover … the surveillance footage revealed that someone looking strikingly similar to defendant consumed several alcoholic beverages hours before the assault and that, upon returning to the bar, exhibited markedly different behavior from earlier in the evening. Additionally, … the People’s expert witness testified that consumption of alcohol in excess can alter one’s personality, which supported his theory of voluntary intoxication. People v Adrian, 2022 NY Slip Op 05896, Third Dept 10-20-22

Practice Point: Here there was sufficient evidence, including expert evidence, of defendant’s intoxication to raise a doubt about whether defendant formulated the intent to commit assault second. Defendant’s request for the intoxication jury charge should have been granted.

 

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