169 Misc. 2d 757 | Rochester City Court | 1996
OPINION OF THE COURT
The defendant is charged with the crime of sexual misconduct, second degree. In this motion, he challenges the facial sufficiency of the accusatory instrument. The question presented to the court is whether natural, uninduced sleep constitutes being in a physically helpless condition from which one may be deemed incapable of consenting to deviate sexual intercourse. The information alleges that the complainant was asleep in the defendant’s apartment, when he awoke to realize that the defendant had inserted his penis in the complainant’s anus.
To be facially sufficient, an information charging this offense
The practice commentary states that the definition of "physically helpless” would apply to a person who was in a deep sleep as a result of barbiturate consumption or who was a paralytic (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 130, at 573). A survey of the cases shows that where article 130 prosecutions are premised on the victim’s lack of consent due to "physical helplessness,” the condition is generally drug or alcohol
Although dictum, the Court in People v Irving (151 AD2d 605) found the statutory definition of "physically helpless” to be broad enough to include a sleeping victim. In People v Thiessen (158 AD2d 737), the Court found a sleeping victim
Nor is the lack of consent altered by the complainant’s conduct after he awoke. The information alleges that on waking, the complainant told the defendant to stop. The defendant allegedly responded that the complainant should relax, to make it easier. According to the information, the defendant continued performing deviate sexual intercourse upon the complainant for 5 to 10 minutes. These allegations do not constitute the crime of sexual misconduct, since no facts demonstrating either forcible compulsion or incapacity to consent are alleged. The defendant posits that the complainant’s conduct on awaking vitiates any prior claim of nonconsensual sex. This position is untenable. First, the complainant did not acquiesce in the conduct complained of. On gaining consciousness, the complainant told the defendant to stop. There was no ratification of the defendant’s acts, but rather the opposite. Second, the defendant’s acts ripened into the crime of sexual misconduct upon contact between the defendant’s penis and the complainant’s anus (cf., People v Griffith, 80 AD2d 590; People v Reed, 144 AD2d 932; People v Francis, 153 AD2d 901; People
The defendant’s motion to dismiss the information on the grounds of facial sufficiency is denied in all respects.
. Penal Law § 130.20 (2) reads as follows:
"A person is guilty of sexual misconduct when * * *
"2. He engages in deviate sexual intercourse with another person without the latter’s consent.”
. The Court in Thiessen (supra) attached no significance to the fact that the victim was drinking alcoholic beverages and had become ill before returning to her room and falling asleep. Thus, there is some question as to whether this is a pure sleep case or not.