Criminal Law

Voluntary intoxication is not a defense to a crime requiring only a general criminal intent, but rather may be introduced to negate an element of the crime charged. People v. Caverio, 286 A.D. 369, 378 (1955). Voluntary intoxication may render the accused incapable of formulating the required intent, and accordingly the charge must be reduced to a lower degree or type that does not require a specific intent. Id.Intoxication, similar to a mitigating defense, “merely reduces the gravity of the offense by negating an element.” People v. Harris, 98 N.Y.2d 452, 475 (2002).

Voluntary intoxication cannot negate the elements of recklessness or depraved indifference. Penal Law § 15.25People v. Ward, 192 A.D.2d 880 (3d Dep’t 1993). The crime of attempted murder in the second degree, however, requires the specific intent to cause the death of another person.  People v. Thomson, 279 A.D.2d 644 (2001). Therefore, the intent element of second degree murder can be negated with intoxication. Id. at 645.

II. Assault in the Second Degree (§ 120.05(2)) & Assault in the First Degree (§120.10(1))


If the court fails to instruct the jury of the intent element of assault, the omission may contribute to an improper verdict. People v. Satisfield, 68 A.D.2d 817, 818 (1979). “The court’s reference in its intoxication charge to only the attempted murder might well have served to instill in the jurors’ minds that intent was not an element of the assault charge.” Id. Under Penal Law § 120.05(2), assault in the second degree states “with the intent to cause physical injury.” Similarly, assault in the first degree, under § 120.10 (1), states “With [the] intent to cause serious physical injury” to another person.  Consequently, an instruction on intoxication is required in the interest of justice regardless if the defense counsel requests it. People v. Isrile, 64 A.D.2d 536 (1978). In other words, if an intoxication instruction will be read to the jury, it must encompass all specific intent crimes and not solely the charge of attempted murder. Id.

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