Opinion
October 19, 1992
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is affirmed.
The trial evidence showed that after drinking wine with a friend, the defendant took his rifle to the roof of his Brooklyn apartment building and fired approximately 17 shots onto the street below, killing two persons and wounding another. On appeal, the defendant argues that the court erred in refusing to instruct the jury that his chronic alcoholism rendered his intoxication involuntary so as to negate the mens rea element of reckless manslaughter (see, Penal Law § 125.15). We find no merit to this contention.
The Legislature has determined that voluntary intoxication may not be raised in defense of reckless manslaughter since the act of becoming intoxicated itself constitutes recklessness (see, Penal Law § 15.05; § 15.25; People v Register, 60 N.Y.2d 270, cert denied 466 U.S. 953). Contrary to the defendant's contention, alcoholism does not render an alcoholic's intoxication involuntary so as to relieve him from liability for the reckless acts committed while he is intoxicated (see, People v Westergard, 69 N.Y.2d 642; People v Tocco, 138 Misc.2d 510; see also, People v Davis, 33 N.Y.2d 221, cert denied 416 U.S. 973). Therefore, the court properly denied the defendant's charge request.
We also reject the defendant's argument that his videotaped statement should have been suppressed because he did not voluntarily, knowingly and intelligently waive his Miranda rights. The hearing record shows that at the time of this statement, made more than 10 hours after the crime, the defendant was not intoxicated. Furthermore, it is well settled that "[a]n effective waiver of Miranda rights may be made by an accused of subnormal intelligence so long as it is established that he or she understood the immediate meaning of the warnings" (People v Williams, 62 N.Y.2d 285, 287). We find no basis to disturb the court's determination that the defendant, who tested within the low average to mildly retarded range of intelligence, understood and effectively waived his rights (see, People v Corona, 173 A.D.2d 484; People v Anthony, 165 A.D.2d 876; People v Zuluaga, 148 A.D.2d 480; People v Bucknor, 140 A.D.2d 705).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Bracken, J.P., Sullivan, Balletta and Copertino, JJ., concur.