People v Smith

People v Smith 2007 NY Slip Op 00160 [36 AD3d 633] January 9, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 14, 2007

The People of the State of New York, Respondent,
v
Thomas Smith, Appellant.

—[*1] Mathew B. Tully, Albany, N.Y., for appellant.

Michael E. Bongiorno, District Attorney, New City, N.Y. (Stephanie A. Small of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered September 28, 2004, convicting him of assault in the first degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant's claim that his intoxication precluded him from forming the intent required to commit the crimes of which he was convicted is unpreserved for appellate review, as he did not request an intoxication charge or object when the court did not give such a charge (see CPL 470.05 [2]; People v Dorst, 194 AD2d 622 [1993]; People v Angel, 185 AD2d 356 [1992]). In any event, the trial court did not err in failing to give an intoxication instruction to the jury (see Penal Law § 15.25). Such an instruction need not be given where, as here, the evidence of alcohol consumption was minimal and no reasonable person would have entertained a doubt as to the element of intent on that basis (see People v Gaines, 83 NY2d 925, 927 [1994]; People v Rodriguez, 76 NY2d 918, 921 [1990]; People v Perry, 61 NY2d 849, 850 [1984]; People v Salco, 302 AD2d 613 [2003]).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit. Mastro, J.P., Florio, Fisher and Dillon, JJ., concur.