| People v Adsit |
| 2015 NY Slip Op 01112 [125 AD3d 1430] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jamison Adsit, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson ofcounsel), for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered August 14, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal sexual act in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal sexual act in the second degree (Penal Law § 130.45 [2]),defendant contends that the evidence is legally insufficient to support the conviction. Wereject that contention. Specifically, defendant contends that the evidence is legallyinsufficient with respect to the issue whether the victim "is incapable of consent byreason of being mentally disabled" (id.), which "means that [she] suffers from amental disease or defect which renders . . . her incapable of appraising thenature of . . . her conduct" (§ 130.00 [5]). "An ability to'appraise' is, of course, a qualitative matter, all the more so when the appraisal is one tobe made of the 'nature' of 'conduct[,]' with the variety of factors that the one 'appraising'may have to take into account for such purposes. Cognitive understanding is involved. Ina case such as the one before us, it includes [the victim] being substantially able tounderstand what she was doing" (People v Easley, 42 NY2d 50, 56 [1977]).
Here, the People presented the testimony of a paramedic, physician's assistant, nurse,nursing assistant, and psychiatrist establishing that the victim had suffered a seizure andwas incoherent both upon her admission to the hospital and the next day, when theincident giving rise to the charge occurred. The psychiatrist, who reviewed the victim'smedical records and examined her, opined that she was suffering from a mental defectthat rendered her incapable of appraising the nature of sexual activity. The defensepresented the testimony of an expert witness who conducted a forensic evaluation of themedical, police and ambulance records and opined that the records were inconclusivewith respect to the victim's ability to appraise the nature of her sexual conduct. Viewingthe evidence in the light most favorable to the prosecution, as we must (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legallysufficient to establish that the victim lacked the mental capacity to appraise the nature ofher sexual conduct and thus was unable to consent to defendant's actions (see Peoplev Dixon, 66 AD2d 971, 972 [1978]; see generally People v Cratsley, 86NY2d 81, 86-88 [1995]; Easley, 42 NY2d at 55-57). Furthermore, viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Finally, we reject defendant's contention that he was denied the right to effectiveassistance of counsel. The record establishes that defense counsel made a clear andcogent opening statement directed at the People's inability to prove that the victim wasincapable of appraising the nature of her conduct, conducted meaningfulcross-examination, lodged objections consistent with the defense theory, presented thetestimony of an expert who highlighted [*2]inconsistencies in the victim's medical records with respectto her coherency and awareness, and obtained an acquittal on the top count of theindictment. Defense counsel's isolated comments on the paucity of DNA evidence werenot tantamount to the assertion of an inconsistent defense that no oral sexual conductoccurred. Viewing the evidence, the law and the circumstances of this case, in totalityand as of the time of the representation, we conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Present—Smith, J.P., Fahey, Whalen and DeJoseph, JJ.