People v. Allen — 69 N.Y.2d 915

Majority

p. 915

The People of the State of New York, Respondent, v Barry Allen, Appellant.

Argued March 23, 1987;

decided April 23, 1987

p. 916

APPEARANCES OF COUNSEL

Miriam J. Hibel and Philip L. Weinstein for appellant.

Elizabeth Holtzman, District Attorney (Aaron F. Fishbein and Barbara D. Underwood of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division affirming a judgment of conviction for murder in the second degree should be affirmed.

Defendant’s central contention on this appeal relates in two respects to instructions to the jury on intoxication. There is no error in denying a reinstruction on intoxication in the supplemental charge to the jury inasmuch as the jury did not ask for reinstruction on that issue but only on the elements of the crime charged.

Defendant’s objection to the primary instruction on intoxication is now framed as a violation of due process by importing a burden of proof shift or undue emphasis on credibility. It was not so framed as an objection expressed to the Trial Judge, and is not adequately preserved by the unparticularized objection to the intoxication instruction.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.