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People v Gonzalez (Luis)
2006 NY Slip Op 51701(U) [13 Misc 3d 128(A)]
Decided on May 4, 2006
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 4, 2006
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2004-1432 Q CR.

The People of the State of New York, Respondent,

against

Luis Gonzalez, Appellant.


Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), rendered September 14, 2004. The judgment convicted defendant, upon a jury verdict, of forcible touching, sexual abuse in the third degree, and harassment in the second degree.


Judgment of conviction affirmed.

"A charge on intoxication should be given if there is sufficient 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 [1984]). In the instant case, the sole evidence to support defendant's claim of intoxication is the complainant's testimony that 35 minutes after the incident, defendant was located on the sidewalk outside a bar and that he was "walking funny" at that time. However, there was no evidence that defendant was intoxicated at the time of the incident, ever consumed an intoxicant or smelled of alcohol. As a result, the court properly denied defendant's request for an intoxication charge since there was insufficient evidence of intoxication for a reasonable person to entertain a doubt as to the element of intent on that basis (see People v Gaines, 83 NY2d 925 [1994]; People v Salco, 302 AD2d 613 [2003]; People v Garcia, 271 AD2d 695 [2000]; People v Hill, 255 AD2d 969 [1998]; People v Watson, 205 AD2d 398 [1994]).

Golia, J.P., Rios and Belen, JJ., concur.