Opinion
Decided June 6, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Elizabeth W. Pine, J.
Edward J. Nowak, Public Defender ( Howard K. Broder of counsel), for appellant.
Howard R. Relin, District Attorney ( Wendy Evans Lehmann of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
A reversal is mandated by the trial court's denial of defendant's request for a charge on intoxication. Where the issue on appeal is whether a particular theory of defense should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant ( People v Padgett, 60 N.Y.2d 142, 144; People v Watts, 57 N.Y.2d 299, 301; People v Torre, 42 N.Y.2d 1036, 1037; People v Steele, 26 N.Y.2d 526, 529). Here, the appearance and conduct of defendant when he was arrested, which are described in the dissenting memorandum of Justice Samuel Green (106 A.D.2d, at pp 880-882), constituted sufficient evidence to warrant a charge on intoxication at defendant's trial.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.