People v. Young

—Judgment unanimously reversed on the law and new trial granted. Memorandum: On this appeal from a judgment convicting defendant of criminal mischief in the third degree, he contends that the trial court erred in denying his request to charge criminal mischief in the fourth degree (Penal Law § 145.00 [3] [recklessly damaging the property of another]) as a lesser included offense. We agree.

Defendant’s girlfriend, who owned the vehicle that was damaged, testified that defendant drank two 40-ounce containers of beer and, with his cousin, drank a pint of gin in the two-hour period before she and defendant went to a party. While at the party, defendant drank beer, an alcoholic punch, and brandy. Other prosecution witnesses testified that defendant drank alcoholic beverages while at the party. Two prosecution witnesses opined that defendant was intoxicated while at the party. A reasonable view of that evidence, when considered in the light most favorable to defendant (see, People v Martin, 59 NY2d 704), would support a finding that defendant acted recklessly (see, Penal Law § 15.05 [3]), rather than intentionally, in damaging his girlfriend’s car as he left the party. (Appeal from Judgment of Monroe County Court, Egan, J.—Criminal Mischief, 3rd Degree.) Present—Pine, J. P., Balio, Callahan, Davis and Boehm, JJ.