People v. Orr , 43 A.D.2d 836 ( 1974 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 29, 1972, convicting him of assault in the third degree, criminal mischief in the third degree and resisting arrest, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. In our opinion, the trial court’s refusal to charge as to the possibility of intoxication deprived defendant of a substantial trial right. Intoxication, while it is not a defense, may be considered by a jury in determining the presence of the element of intent in any crime, pursuant to section 15.25 of the Penal Law. Intent is an element in all three of the crimes of which defendant stands convicted, an element which the jury was required to find in order to convict. Since intoxication could negate the element of intent, and since there was considerable evidence of the possibility of intoxication, the refusal of the trial court to charge on intoxication was error. The fact that the evidence of intoxication was introduced through prosecution witnesses, in both direct and cross-examination, and not by defendant, is not a reason for denial of the requested charge. The charge should be given if there is sufficient evidence of intoxication in the record for a reasonable man to entertain a doubt as to the element of intent on that basis (People v. Steele, 26 N Y 2d 526; see, also, Womack v. United States, 336 F. 2d 959). Rabin, P. J., Munder,

Martuscello, Latham and Christ, JJ., concur.