Appeal by defendant from a judgment of the County Court, Nassau County, rendered March 21, 1974, convicting him of assault in the second degree and disorderly conduct, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No issues of fact were raised on this appeal and none were considered. In view of defendant’s testimony to the effect that on the day of the crimes charged he had consumed nine bottles of beer and was “ fairly intoxicated ”, the jury could
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have found that at the time in question he was too intoxicated to intend to prevent a peace officer from performing his lawful duty, and, accordingly, the trial court erred in not charging the jury in this regard (People v. Lee, 35 N Y 2d 826). Cohalan, Acting P. J., Brennan, Benjamin, Munder and Shapiro, JJ., concur.