| People v Dean |
| 2010 NY Slip Op 01388 [70 AD3d 1193] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Richard Dean,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Cerio, Jr., J.),rendered November 24, 2008, convicting defendant following a nonjury trial of the crimes ofrape in the second degree and endangering the welfare of a mentally incompetent person.
Defendant and the victim are adults who have mental impairments such that both are in thebottom one percent of the range of human intelligence. Defendant's IQ is 64 and he functions at ahigher level than the victim, whose IQ is 52. They had known each other for many years when,in February 2007, they engaged in sexual intercourse. In June 2007, the social worker assignedto the victim at the sheltered workshop where she worked received a call from the victim'smother indicating that the victim might be pregnant. A home pregnancy test revealed she waspregnant and, shortly thereafter, the victim visited her doctor who confirmed such fact. However,it was determined that the unborn child had severe physical disabilities and that the child wouldnot live after birth. The victim elected to continue the pregnancy to term, and the child died onthe date of birth in mid-September 2007.
After the victim's pregnancy was confirmed, a relative of the victim told police that thevictim had been forced by defendant to have sex. Upon questioning by police, defendantacknowledged that he had sex with the victim, but maintained that it was consensual as he [*2]characterized her as his girlfriend. He was nevertheless indicted ontwo counts, one for rape in the second degree for engaging in sexual intercourse with a personallegedly incapable of consent by reason of mental disability (see Penal Law §130.30 [2]) and a second count for endangering the welfare of an incompetent person(see Penal Law § 260.25). Following a nonjury trial, defendant was convicted ofboth counts. He was sentenced to six months of incarceration and 10 years of probation.Defendant appeals.
We consider first defendant's weight of the evidence argument. Where, as here, an acquittalwould not have been unreasonable, we "must weigh conflicting testimony, review any rationalinferences that may be drawn from the evidence and evaluate the strength of such conclusions"(People v Danielson, 9 NY3d342, 348 [2007]; see People vRichardson, 55 AD3d 934, 935 [2008], lv dismissed 11 NY3d 857 [2008])."Based on the weight of the credible evidence, [we] then decide[ ] whether the [factfinder] wasjustified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson,9 NY3d at 348 [citation omitted]; seePeople v O'Neil, 66 AD3d 1131, 1132, [2009]; People v Parks, 53 AD3d 688, 692 [2008]; People v Clayton, 17 AD3d 706,707 [2005]; People v King, 265 AD2d 678, 679 [1999], lv denied 94 NY2d 904[2000]). Such analysis necessarily includes considering whether all the elements of the crimewere established (see People v Danielson, 9 NY3d at 349).
A necessary element in this case was whether the victim was incapable of consenting to theconduct with defendant. "Our jurisprudence recognizes certain limitations on the ability of alegally incapacitated person to consent to participate in sexual relations" and "[t]hat limitation isan exercise of the [s]tate's parens patriae interest, invoked only where the individual isdeemed unable to make a competent decision concerning a fundamental right" (People vCratsley, 86 NY2d 81, 86 [1995]). The burden to establish legal incapacity in such regard is"a high one" as "[t]he law does not presume that a person with mental retardation is unable toconsent to sexual intercourse, and proof of incapacity must come from facts other than mentalretardation alone" (id. at 86 [citation omitted]; see People v Easley, 42 NY2d 50,54 [1977]). A relevant consideration is whether the encounter was primarily exploitative of thevictim since that is "the type of harm the law most seeks to guard against by this provision"(People v Cratsley, 86 NY2d at 88; see People v Patterson, 165 AD2d 886[1990], lv denied 76 NY2d 989 [1990] [the defendant was an employee at an adult homeand had sex with a mentally impaired resident]; People v Dixon, 66 AD2d 971 [1978][the defendant was a bus driver for mentally impaired persons and used that position to engage insexual activity with a mentally impaired woman]; see also People v Thompson, 142 CalApp 4th 1426, 1429, 48 Cal Rptr 3d 803, 804 [2006] ["it is the proper business of the state tostop sexual predators from taking advantage of developmentally disabled people"]).
Review of the record reveals that defendant and the victim had known each other for at least10 years. The victim's sister had been defendant's prior girlfriend and they had two childrenduring their relationship. The victim's parents (who also have mental impairments) were awarethat defendant and the victim were spending time together. Prior to her relationship withdefendant, the victim had a boyfriend at the sheltered workshop where she worked and thatrelationship was characterized by an employee from the workshop as a loving one. Whiledefendant functioned at a higher level than the victim and had even been able to obtain a driver'slicense, both tested in the bottom one percent of human intelligence. Defendant's expert testifiedconvincingly that defendant viewed the victim (and her family) as his peers. In her unsworntestimony, the victim acknowledged that defendant had given her a ring. There were photographsof the victim and defendant together, including one depicting the victim leaning her [*3]head on defendant's shoulder as they sat together on a couch andanother of the victim sitting on defendant's lap. Although these photographs were not included inthe record, their content is not disputed and they were described by one witness as reflectingmutual affection. The victim's treating physician stated at trial that the victim related that shewas happy to be having a baby. The record reflects that the victim was given autonomy bymedical care providers regarding reproductive choices. These choices included her decision tocarry the pregnancy to full term and her subsequent decision to use birth control. As to the latterof these choices, we note that defendant's conviction, if upheld, would make it likely thatvirtually anyone who engaged in sex with her would be committing a crime. While proof waspresented supporting the conviction, we are unpersuaded, after independently considering andweighing the evidence from this nonjury trial, that such proof satisfied the People's high burdenof establishing that the victim lacked the mental capacity to consent to sex with defendant underthe circumstances of this case.
The remaining issues are academic.
Peters, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the facts, and indictment dismissed.