People v. Hill , 681 N.Y.S.2d 919 ( 1998 )

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). Defendant contends that Supreme Court erred in refusing his request to charge the defense of intoxication and, on the basis of that defense, to submit third degree (reckless) assault as a lesser included offense of first and second degree (intentional) assault. Because there was insufficient “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 NY2d 849, 850), the court properly denied the request to charge that defense (see generally, Penal Law § 15.25). 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 (see, People v Gaines, 83 NY2d 925, 926-927; People v Rodriguez, 76 NY2d 918, 920-921). A witness’s impression that defendant appeared to be “passed out” in the rear of the patrol car when defendant was transported to the scene of the crime for a showup was insufficient, by itself, to warrant an intoxication charge (cf., People v Gaines, supra, at 927).

The court also properly refused defendant’s request to charge third degree assault as a lesser included offense. Given the lack of evidence of intoxication, or other evidence tending to disprove intent, there is no reasonable view of the evidence that defendant acted recklessly and not intentionally (see, People v Williams, 252 AD2d 823; People v Cardona, 243 AD2d 267, lv denied 91 NY2d 833; People v Ramos, 242 AD2d 510, lv denied 91 NY2d 896). (Appeal from Judgment of Supreme Court, Monroe County, Affronti, J. — Assault, 2nd Degree.) Present — Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.