| People v Chodakowski |
| 2018 NY Slip Op 04280 [162 AD3d 476] |
| June 12, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Szymon Chodakowski, Appellant. |
Brafman & Associates, P.C., New York (Mark M. Baker of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel),respondent.
Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), renderedNovember 29, 2016, convicting defendant, after a jury trial, of rape in the first degree and sexualabuse in the first degree, and sentencing him to concurrent terms of 5 years, unanimouslyaffirmed.
The People met their burden of establishing defendant's guilt of first-degree rape andfirst-degree sexual abuse by proving beyond a reasonable doubt that defendant subjected thevictim to sexual intercourse while she was unable to consent due to being physically helpless,since she was asleep when the intercourse started. Although it is undisputed that defendant hadbeen drinking heavily that night, defendant failed to meet his burden of establishing by apreponderance of the evidence (Penal Law § 25.00 [2]) that he did not know thatthe victim was asleep while having had sexual intercourse with her (Penal Law§ 130.10 [1]).
Defendant's CPL 330.30 (2) claims are unpreserved based upon his failure to file theappropriate motion in Supreme Court for the relief he seeks here. In fact, prior to sentencing,defense counsel never specifically requested a new trial or hearing on the grounds now raised onappeal.
We perceive no basis for reducing the sentence. Concur—Richter, J.P., Webber, Kahn,Kern, Oing, JJ.