People v. Ferrer

May 26, 1998
Versions:250 A.D.2d 860
672 N.Y.S.2d 795
1998 N.Y. App. Div. LEXIS 5964

—Appeal by the de*861fendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 21, 1995, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and sexual abuse in the third degree, upon a jury verdict, and sentencing him to indeterminate terms of 12V2 to 25 years imprisonment for rape in the first degree, I2V2 to 25 years imprisonment for sodomy in the first degree, and 3V2 to 7 years imprisonment for sexual abuse in the first degree, and a determinate term of 3 months imprisonment for sexual abuse in the third degree, all sentences to run consecutively.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed upon the defendant’s convictions of rape in the first degree and sodomy in the first degree from consecutive indeterminate terms of I2V2 to 25 years imprisonment to consecutive indeterminate terms of 7V2 to 15 years imprisonment, respectively; as so modified, the judgment is affirmed.

The evidence was legally sufficient to support the finding that the complainant was incapable of consenting to sexual intercourse and deviate sexual intercourse with the defendant because she was physically helpless (see, Penal Law § 130.00 [7]; § 130.35 [2]; § 130.50 [2]). The substantial testimony regarding the complainant’s intoxication enabled the jury to infer that she lacked the capacity to consent due to her weakened condition (see, People v Teicher, 52 NY2d 638; People v Cirina, 143 AD2d 763). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The sentences were excessive to the extent indicated.

We have examined the defendant’s remaining contentions, and find them to be without merit. Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.