People v. Clyburn
| Decision Date | 03 February 1995 |
| Citation | 212 A.D.2d 1030,623 N.Y.S.2d 448 |
| Parties | PEOPLE of the State of New York, Respondent, v. Ato D. CLYBURN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Linda S. Reynolds by Olga Hazlewood, Buffalo, for appellant.
Kevin M. Dillon by Donna Milling, Buffalo, for respondent.
Before DENMAN, P.J., and PINE, LAWTON, DOERR and DAVIS, JJ.
Defendant was convicted of two counts of rape in the first degree: sexual intercourse with a female by forcible compulsion (Penal Law § 130.35[1] and sexual intercourse with a female who is incapable of consent by reason of being physically helpless (Penal Law § 130.35[2]. He was also convicted of one count of burglary in the second degree (Penal Law § 140.25[2].
We reject defendant's contention that the proof of forcible compulsion is legally insufficient to sustain the conviction on count one. Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that, based on the testimony of the victim, the proof is legally sufficient to establish the element of forcible compulsion both by use of physical force (Penal Law § 130.00[8][a] and by an implied threat placing the victim in fear of immediate death or physical injury (Penal Law § 130.00[8][b]; see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Coleman, 42 N.Y.2d 500, 505-506, 399 N.Y.S.2d 185, 369 N.E.2d 742; People v. Benjamin R., 103 A.D.2d 663, 667-668, 481 N.Y.S.2d 827).
We agree with defendant, however, that the proof that the victim was physically helpless is legally insufficient to sustain his conviction on count two. The fact that the victim was afflicted with Huntington's Chorea did not render her physically helpless, i.e., "unconscious or for any other reason * * * physically unable to communicate unwillingness to an act" (Penal Law § 130.00[7]. The victim testified that, when she first saw defendant in her bedroom, she asked him his age. Two officers who responded to the scene testified concerning their conversations with the victim. The proof thus fails to establish that the victim was either unconscious or physically unable to communicate her unwillingness to engage in sexual intercourse with defendant (see, People v. Huurre, 193 A.D.2d 305, 306-307, 603 N.Y.S.2d 179, lv. granted 82 N.Y.2d 925, 610 N.Y.S.2d 177, 632 N.E.2d 487; cf., People v. Teicher, 52 N.Y.2d 638, 648-649, 439 N.Y.S.2d 846, 422 N.E.2d 506; People v. Irving, 151 A.D.2d 605, 606, 542 N.Y.S.2d 693; see also, People v....
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State v. Fourtin
...[Citation omitted.] ), appeal denied, 99 N.Y.2d 559, 784 N.E.2d 84, 754 N.Y.S.2d 211 (2002), with People v. Clyburn, 212 App.Div.2d 1030, 1031, 623 N.Y.S.2d 448 (victim who suffered from Huntington's chorea, but could speak, not physically helpless), appeal denied, 85 N.Y.2d 971, 653 N.E.2d......
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State v. Fourtin
.... . . ." [Citation omitted.]), appeal denied, 99 N.Y.2d 559, 784 N.E.2d 84, 757 N.Y.S.2d 211 (2002), with People v. Clyburn, 212 App. Div. 2d 1030, 1031, 623 N.Y.S.2d 448 (victim who suffered from Huntington's chorea, but could speak, not physically helpless), appeal denied, 85 N.Y.2d 971, ......
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State v. Stevens
...speak or verbally communicate in some way, such as the victims here, were not considered "physically helpless." People v. Clyburn (1995), 212 A.D.2d 1030, 623 N.Y.S.2d 448 (victim afflicted with Huntington's Chorea who could speak not "physically helpless"); People v. Huurre (1993), 193 A.D......
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State v. Fourtin
...(Citation omitted; internal quotation marks omitted.) State v. Courchesne, supra, 296 Conn. 671. 16. See, e.g., People v. Clyburn, 212 App. Div. 2d 1030, 1031, 623 N.Y.S.2d 448 (evidence was insufficient to sustain conviction for sexual assault of physically helpless person because victim, ......