Judgment affirmed. Memorandum: “A charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” (People v Perry, 61 NY2d 849, 850). Thus, before an intoxication charge is warranted, first there must be evidence of intoxication, and second, the evidence of intoxication must be sufficient to cause a reasonable person to entertain a doubt whether, because of the intoxication, the defendant formed the requisite intent. In Perry (supra, p 851), the court held that intoxication should have been charged since there was “undisputed evidence of defendant’s intoxication at the time of the commission of the crime.” Unlike Perry (supra), where the defendant had been drinking all night, here there was no evidence in the record of defendant’s intoxication. The only evidence bearing upon intoxication came from the testimony of one of the police officers who, accompanied by a police dog, found the defendant hiding in the attic rolled inside a rug. The officer said he noticed the smell of alcohol on the defendant and that the defendant’s eyes appeared “slightly” bloodshot. He also noticed *879the defendant’s clothing was disheveled, but this was consistent with the fact that the defendant had rolled himself into the rug.
Intoxication “has long been held to mean an incapacity to perform various mental or physical acts which an average person would be able to do.” (People v Cruz, 48 NY2d 419, 427.) Here, there was no indication that because of drinking the defendant’s mental or physical capacity was impaired. There was no evidence that defendant’s speech was slurred or that he was unsteady on his feet. All of the evidence concerning his mental or physical capacity was inconsistent with mental or physical impairment. Defendant was coherent at the scene of the burglary and had shown a considerable amount of dexterity in removing broken glass from the window frame and in climbing from the back porch up to and through the window, which was some distance from the ground. Nor were his actions so bizarre as to indicate they were induced by intoxication. They were consistent with those of a burglar who was searching the inside of a house for valuables to steal. He had ransacked one of the bedrooms and had taken a sleeping bag out of a closet and a watch case out of a dresser drawer. When he became aware of the arrival of the police, he abandoned these items and went to the attic where he hid inside the rug.
The fact that the defendant dropped his arms after being told by the police officer not to move is not unusual. When the officer first called off the dog he told the defendant to put his hands in the air and to remain still and nothing would happen to him. The officer then began to pat down the defendant and told him not to move until the officer got back to the dog. After the officer finished his pat-down search of the defendant and began to move away, the defendant dropped his arms. This dropping of the arms, a natural reaction after a pat-down search was completed, cannot be said to be evidence of intoxication. At most, it was a misunderstanding of what the officer meant when he told the defendant not to move.
The dissent, citing People v Orr (43 AD2d 836, affd 35 NY2d 829), would require the court to give a charge on intoxication whenever there is evidence in the record of a “possibility” of intoxication. People v Orr (supra) does not so hold. In that case, the court found that there “was considerable evidence of the possibility of intoxication”. It then stated the correct rule, since restated in People v Perry (supra). Here, there was no evidence of intoxication and certainly no such evidence sufficient for a reasonable person to entertain a doubt as to whether intoxication had negated the element of defendant’s intent.
All concur, except Green, J., who dissents and votes to reverse and grant a new trial, in the following memorandum.