| People v Edison |
| 2018 NY Slip Op 08497 [167 AD3d 769] |
| December 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dennis Edison, Appellant. |
Randall D. Unger, Bayside, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Donald Berk and Brian Witthuhn ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert A.McDonald, J.), rendered October 14, 2016, convicting him of rape in the first degree and sexualabuse in the first degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was hosting the complainant and her friend, both 21-year-old tourists fromGermany, for several days at his home in Long Beach, after having met and made arrangementson a website called CouchSurfing.com. The complainant alleged that, on November 24, 2015, thedefendant surreptitiously slipped a so-called "date-rape" drug into alcoholic drinks he served thecomplainant and her friend, and that a couple of hours later, as the complainant lay unconsciouson the defendant's massage table, he had sexual intercourse with her, and subjected her to sexualcontact. Upon regaining consciousness, the complainant had no recollection of any sexualactivity. A DNA profile of sperm cells found on cervical and vaginal swabs taken from thecomplainant matched the defendant's DNA profile obtained from a buccal swab. At the nonjurytrial, the defendant denied having drugged the complainant or her friend, testifying that he andthe complainant had engaged in consensual sex, initiated by the complainant, in which she wasan active participant and awake at all times.
A person is guilty of rape in the first degree or sexual abuse in the first degree, as chargedhere, "when he or she engages in sexual intercourse" or "when he or she subjects another personto sexual contact," respectively, where the other person "is incapable of consent by reason ofbeing physically helpless" (Penal Law §§ 130.35 [2]; 130.65 [2]). With respectto both offenses, a person is physically helpless if he or she is "unconscious or for any otherreason is physically unable to communicate unwillingness to an act" (Penal Law§ 130.00 [7]; see Penal Law §§ 130.35 [2]; 130.65 [2]; People v Sposito, 140 AD3d 1308,1309 [2016], affd 30 NY3d 1110 [2018]; People v Bjork, 105 AD3d 1258, 1260 [2013]). Where a "victim'slack of consent is based solely upon his or her incapacity to consent because he or she was. . . physically helpless, it is an affirmative defense that the defendant, at the time heor she engaged in the conduct constituting the offense, did not know of the facts or conditionsresponsible for such incapacity to consent" (Penal Law § 130.10 [1]). A defendant[*2]bears the burden of establishing such defense by apreponderance of the evidence (see Penal Law § 25.00 [2]; People vSposito, 140 AD3d at 1309; People v Bjork, 105 AD3d at 1262).
The defendant contends, inter alia, that the People failed to submit sufficient evidence toprove beyond a reasonable doubt that the complainant was unconscious when the defendant hadsexual intercourse with her. He further contends that the verdict was against the weight of theevidence.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), it was insufficient to establish beyond a reasonable doubtthat he drugged the alcoholic drinks he gave the complainant and her friend. We agree that theexpert testimony regarding the drug was insufficient to serve as a basis for the conviction. Thattestimony was essentially limited to the suggestion that the drug could have caused thecomplainant's symptoms, and did not supply any basis for concluding that it was thecause, and there was nothing directly supporting the theory that the defendant had drugged thecomplainant other than that some of her symptoms were consistent with the use of the drug (see People v Blackwood, 108 AD3d163, 175-176 [2013]; cf. People vRogers, 8 AD3d 888, 892-893 [2004]). However, neither rape in the first degree norsexual abuse in the first degree requires the victim's physical helplessness to have been caused bydrugs (see Penal Law §§ 130.00 [7]; 130.35 [2]; 130.65 [2]).
Whether the defendant drugged the complainant or not, the complainant's testimony that shehad passed out before, and did not regain consciousness until after, the defendant subjected her tosexual intercourse provided a basis for a rational person to find beyond a reasonable doubt(see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Arpi, 150 AD3d 1256, 1257 [2017]) that the complainantwas "incapable of consent by reason of being physically helpless" (Penal Law§§ 130.35 [2]; 130.65 [2]; see People v Chodakowski, 162 AD3d 476 [2018]; People vBlackwood, 108 AD3d at 173; People v Bjork, 105 AD3d at 1260). Nor is the verdictagainst the weight of the evidence. "The state of the victim's physical helplessness at any givenmoment is largely a question of fact" (People v Teicher, 52 NY2d 638, 649 [1981];see People v Bjork, 105 AD3d at 1261). There is no basis to disturb the credibilitydetermination of the Supreme Court, which had "[the] opportunity to view the witnesses, hear thetestimony and observe demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]; seePeople v Mateo, 2 NY3d 383, 410 [2004]).
The defendant's contentions that he was deprived of a fair trial by the Supreme Court'squestioning of him, and by the prosecutor's cross-examination regarding prior sexual encounters,are unpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are not properly before this Court. Dillon, J.P.,Roman, Miller and Duffy, JJ., concur.