| People v Yontz |
| 2014 NY Slip Op 02629 [116 AD3d 1242] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMichael T. Yontz, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered September 16, 2011, upon a verdict convicting defendant of thecrime of rape in the first degree.
Defendant and the victim lived in the same apartment complex, and defendant hadoccasionally assisted in chores or errands for the victim, who suffered from a variety ofmaladies. According to the victim, defendant had previously propositioned her for sex,but she had flatly refused. In late March 2011, she fell ill and defendant allegedlydiscovered her in an unconscious state in her apartment. He then engaged in sexualintercourse with her and, subsequently, acknowledged such conduct in two statements topolice. Defendant was indicted for—and eventually found guilty by a juryof—rape in the first degree based upon sexual intercourse while the victim wasphysically helpless. County Court sentenced him to 18 years in prison with 10 years ofpostrelease supervision. Defendant now appeals.
We consider first defendant's arguments that the verdict was not supported by legallysufficient evidence and was against the weight of the evidence. The charged crimerequired the People to prove that defendant engaged in sexual intercourse with the victimwhen she was "incapable of consent by reason of being physically helpless" (Penal Law§ 130.35 [2]), and " '[p]hysically helpless' means that a person is unconscious orfor any reason is physically unable [*2]to communicateunwillingness to an act" (Penal Law § 130.00 [7]; see People v Cecunjanin, 16NY3d 488, 491 [2011]; People v Shepherd, 83 AD3d 1298, 1298 [2011], lvdenied 17 NY3d 809 [2011]). Defendant's second statement to police acknowledgedthat, after picking up prescriptions for the victim, he returned to her apartment findingher in bed in a condition characterized as "very sick," "going in and out of sleep" and"very out of it." Deciding that he wanted sex, he disrobed her and commencedintercourse while she was, according to his statement, "still in and out of sleep." Afterfinishing, he recalled that he cleaned up and dressed in her bathroom. There was alsoproof at trial that, when the victim was discovered later that day by family members, shewas in bed naked, unconscious and had bruises on her leg. Defendant's wallet was foundon the bathroom floor in her apartment. She was taken to a hospital where she remainedfor nearly two weeks, she did not recover consciousness for five days, and DNA testingconfirmed that defendant had sexual intercourse with her. Contrary to defendant'sassertion, defendant's confession was adequately corroborated (see CPL 60.50;People v Lapi, 105 AD3d1084, 1086 [2013], lv denied 21 NY3d 1043 [2013]; People v Button, 56 AD3d1043, 1045 [2008], lv dismissed 12 NY3d 781 [2009]; People v Cole, 24 AD3d1021, 1024-1025 [2005], lv denied 6 NY3d 832 [2006]).
Addressing defendant's contention that the sex occurred a day earlier than charged inthe indictment and before the victim was so sick as to not be able to consent, the Peoplepresented proof that a family member had diligently searched the victim's apartment onthe evening before the crime suspecting that the victim was hiding alcoholic beveragesand did not see defendant's wallet, which was found the following day, after the allegedcrime, in plain view on the bathroom floor. His statement acknowledged that he dressedin the bathroom after the sexual encounter. The victim denied consenting to sex withdefendant at any time when she was conscious. Defendant's second statement topolice—while recalling that the conduct occurred a dayearlier—nevertheless admitted that the victim was in a state that would constitutebeing physically helpless. The proof, viewed in the light most favorable to the People,was legally sufficient (seePeople v Thomas, 21 AD3d 643, 645 [2005], lv denied 6 NY3d 759[2005]). Moreover, upon reviewing and weighing the proof in the record, while givingdeference to the jury's credibility determinations, we find that the verdict was not againstthe weight of the evidence (seePeople v Hawkins, 110 AD3d 1242, 1243 [2013], lv denied 22 NY3d1041 [2013]).
Defendant waived his right to challenge the alleged failure to inform him of hisstatutory right to testify before the grand jury (see CPL 190.50 [5] [a]), since hedid not move to dismiss the indictment upon such ground within five days of arraignmentas required by the statute (see CPL 190.50 [5] [c]; People v Sutherland, 104AD3d 1064, 1065 [2013]; People v Caban, 89 AD3d 1321, 1322 [2011]). Although apolice officer improperly interjected a reference to defendant's prior incarceration duringdirect examination by the People, County Court sustained the objection, cut the officeroff when he attempted to continue, immediately directed the jury to disregard the answerand later gave a detailed curative instruction during its charge. Under suchcircumstances, and also noting the overwhelming evidence of guilt as well as the fact thatdefendant did not move for a mistrial at such time, we are unpersuaded that reversal isrequired (see People vRhodes, 49 AD3d 1022, 1023 [2008], lv denied 10 NY3d 963 [2008];People v Reyes-Paredes, 13AD3d 1094, 1095 [2004], lv denied 4 NY3d 802 [2005]). The remainingarguments have been considered and are without merit.
Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.