OPINION OF THE COURT
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 NY2d 142, 144; People v Watts, 57 NY2d 299, 301; People v Torre, 42 NY2d 1036,1037; People v Steele, 26 NY2d 526, 529). Here, the appearance and conduct of defendant when he was arrested, which are described in the dissenting memorandum of Justice *736Samuel Green (106 AD2d, 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 NYCRR 500.4), order reversed, etc.