People v. Ferrer

• Decision Date: 26 May 1998
• Citation: 250 A.D.2d 860,672 N.Y.S.2d 795
• Parties: 1998 N.Y. Slip Op. 5084 The PEOPLE, etc., Respondent, v. Esteban FERRER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 795

672 N.Y.S.2d 795

1998 N.Y. Slip Op. 5084

The PEOPLE, etc., Respondent, v. Esteban FERRER, Appellant.

Supreme Court of New York, Appellate Division, Second Department.

May 26, 1998.

Gary E. Eisenberg, Monroe, for appellant.

Francis D. Phillips, II, District Attorney, Goshen (Paul Harnisch, of counsel), for respondent.

Appeal by the defendant 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 12 1/2 to 25 years imprisonment for rape in the first degree, 12 1/2 to 25 years imprisonment for sodomy in the first degree, and 3 1/2 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 12 1/2 to 25 years imprisonment to consecutive indeterminate terms of 7 1/2 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 N.Y.2d 638, 439 N.Y.S.2d 846, 422 N.E.2d 506; People v. Cirina, 143 A.D.2d 763, 533 N.Y.S.2d 305). 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., and RITTER, SULLIVAN and PIZZUTO, JJ., concur.