People v. Huurre
| Decision Date | 15 November 1993 |
| Citation | 603 N.Y.S.2d 179,193 A.D.2d 305 |
| Parties | The PEOPLE, etc., Respondent, v. Leo HUURRE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Schoer & Sileo, Syosset (Gary Schoer, of counsel), for appellant.
Francis D. Phillips II, Dist. Atty., Goshen (David R. Huey, of counsel), for respondent.
Before ROSENBLATT, J.P., and LAWRENCE, O'BRIEN and RITTER, JJ.
The issue to be decided on this appeal is whether the evidence adduced, when viewed in the light most favorable to the prosecution, is sufficient to establish that the victim, a profoundly retarded individual, is physically helpless, as that term is defined in Penal Law § 130.00(7), such that the defendant's conviction for sexual abuse in the first degree (see, Penal Law § 130.65[2] is supported by legally sufficient evidence.
The defendant was convicted, inter alia, of sexual abuse in the first degree in that he subjected the victim, a profoundly mentally retarded woman, to sexual contact when she was incapable of consenting to such contact by reason of being physically helpless (Penal Law § 130.65[2]. On appeal he contends that in drafting Penal Law article 130, the article that deals with sex offenses, the Legislature defined the phrase "incapable of consent" in such a way as to preclude a finding that one who is mentally retarded could be incapable of consenting by reason of being physically helpless (Penal Law § 130.05[3]. Contrary to the defendant's contention, the fact that an individual is mentally retarded does not, perforce, preclude a finding that she, either as a consequence of or in addition to that retardation, is physically helpless, that is, physically unable to communicate an unwillingness to an act (Penal Law § 130.00[7]. Here, however, the evidence adduced at trial, when viewed in the light most favorable to the prosecution, is legally insufficient to establish that the victim was physically unable to communicate unwillingness to an act. In fact, the testimony is to the contrary. Although the victim, by virtue of her retardation, is not able to determine what she should or should not be unwilling to do, the testimony adduced at trial established that when she is unwilling to do something she communicates that unwillingness. Thus, the defendant's conviction for sexual abuse in the first degree must be reversed, and that count of the indictment dismissed.
Under Penal Law § 130.05(3), a person is deemed to be incapable of consenting to sexual contact when she is (a) less than seventeen years of age, (b) mentally defective, (c) mentally incapacitated, or (d) physically helpless. In defining the offense of sexual abuse the Legislature, inter alia, employed as a distinguishing factor the manner in which the victim was rendered incapable of consent. Thus, sexual abuse in the first degree occurs when the victim is incapable of consent by reason of being physically helpless (see, Penal Law § 130.65[2], while sexual abuse in the second degree occurs when the victim is incapable of consent by reason of some factor other than being less than 17 years of age (see, Penal Law § 130.60[1]. One is physically helpless as that term is used in Penal Law § 130.65(2) when that person is unconscious "or for any other reason is physically unable to communicate unwillingness to an act" (Penal Law § 130.00[7].
The victim in this case was a 35-year-old woman with an IQ of 16 to 20, which is the functional equivalent of a three-year-old and renders her profoundly mentally retarded. In addition, the victim suffers from cerebral palsy and epilepsy, and is nonverbal in the sense that she has no understandable speech, but she does make gutteral noises and is capable of making and understanding a few signs. Essentially, she is capable of doing and understanding that which a three-year-old can do and understand, except that she does not have the ability to speak. Those who care for the victim testified, however, that her lack of speech does not inhibit her from communicating when she wants or does not want something. Thus, for example, when she was in the hospital after this assault waiting to be examined, she kept crying and pointing away as though she wanted to leave. When the doctor attempted to examine her, she kept trying to get off the examining table and jumped back when he approached her with a tube. The doctor finally became discouraged and left the room without having completed the examination. The victim did receive a complete gynecological examination later that day at the clinic, but in order to do so she had to be strapped down and her legs held apart by two or three people. Similarly, when the victim is given medicine at the institution in which she resides she often backs away and shakes her head, indicating that she does not want to take the medicine. Another example of the victim's ability to communicate occurred when she cut her head and was taken to the hospital. She covered her wound with her hand when the doctor tried to look at it. Perhaps this most vividly typifies the problem with this case--the victim has the physical ability to communicate her unwillingness to do an act, but she is mentally incapable of determining when she should be willing and when she should be unwilling to do an act.
In support of their theory that the victim was incapable of consent by reason of being physically helpless the People proffered the testimony of Dr. Rudolph Procario, a psychiatrist who had spent approximately one and one-half hours with the victim, but relied for his conclusions, for the most part, on an interview with one of the victim's caretakers. On direct examination Dr. Procario testified that the victim was mentally defective and incapable of making any decisions, a fact that essentially went undisputed by the defendant. He went on to opine that although the victim could grunt and mumble, she was incapable of physically communicating, either verbally or nonverbally.
On cross-examination Dr. Procario testified that the victim...
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...York Court of Appeals upheld the determination of the Appellate Division of the New York Supreme Court; see People v. Huurre, 193 App.Div.2d 305, 306–307, 603 N.Y.S.2d 179 (1993); that a nonverbal, profoundly retarded woman who also suffered from cerebral palsy, was not physically helpless ......
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