Opinion
Argued October 22, 1975
Decided December 2, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOHN M. MURTAGH, J.
Carol Berkman and William E. Hellerstein for appellant.
Robert M. Morgenthau, District Attorney (Robert K. Hood and Peter L. Zimroth of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
On January 20, 1971, appellant stabbed Betty Williams through the heart and she died less than three months thereafter. Upon trial of the indictment charging murder and in submitting the question of appellant's sobriety at the time of the attack, the jurors were instructed, inter alia, that they could consider any evidence on the subject, that any determination as to defendant's condition was to be based on evidence and not on speculation or innuendos, and that, if defendant was so intoxicated that he did not have the appropriate intent, he would not be guilty. On the whole, the charge on intoxication was consistent with New York law (Penal Law, § 15.25; People v Jones, 27 N.Y.2d 222, 228-229; People v Koerber, 244 N.Y. 147, 150-151, 152). Indeed, appellant's brief concedes that the "court's terse comments that appellant's actual use of alcohol `may be relevant', if it `was such as to negative the existence of a specific intent'", were "in and of themselves correct".
Appellant urges that the trial court charged erroneously that appellant's reputation and habits were irrelevant, this argument being based apparently on the instruction that the jury should "completely disregard any evidence as to what the defendant's drinking habits were on other occasions." This admonition correctly informed the jury that evidence of mere prior instances of intemperance could not be considered in determining whether defendant had the requisite intent or was in an intoxicated condition at the time of the stabbing (Noonan v Luther, 206 N.Y. 105, 108; Zucker v Whitridge, 205 N.Y. 50, 64, 66; Cleghorn v New York Cent. Hudson Riv. R.R. Co., 56 N.Y. 44, 46; Del Toro v Carroll, 33 A.D.2d 160, 163-165; McQuage v City of New York, 285 App. Div. 249, 253; 1 Wigmore, Evidence [3d ed], § 96; Fisch, New York Evidence, § 216; 21 N.Y. Jur, Evidence, § 188; cf. Kowalczyk v Krum, 19 A.D.2d 803; see McCormack, Evidence [2d ed], § 195, p 464, n 16).
In view of the testimony of appellant's medical expert on causation, the court's statement as to the consideration to be accorded it was not unfair or in error.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed in a memorandum.