People v. Sensourichanh

• Decision Date: 31 January 2002
• Citation: 290 A.D.2d 886,737 N.Y.S.2d 670
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>KITTA SENSOURICHANH, Appellant.
• Court: New York Supreme Court — Appellate Division

290 A.D.2d 886

737 N.Y.S.2d 670

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.KITTA SENSOURICHANH, Appellant.

Carpinello, J.

Decided January 31, 2002.

Mercure, J.P., Crew III, Spain and Rose, JJ., concur.

Carpinello, J.

Defendant was indicted on the charge of rape in the first degree as a result of allegations that he had sexual intercourse with a friend (hereinafter the victim) while she was asleep in her bed after she engaged in a night of drinking, smoking marihuana and ingesting a pill of unknown origin. A jury found him guilty as charged, and he was thereafter sentenced as a second felony offender to 14 years in prison, prompting this appeal.

"A person is guilty of rape in the first degree when he * * * engages in sexual intercourse with another person * * * [w]ho is incapable of consent by reason of being physically helpless" (Penal Law § 130.35 [2]), that is, "unconscious or for any other reason * * * physically unable to communicate unwillingness to an act" (Penal Law § 130.00 [7]). It is well settled that the definition of physically helpless is broad enough to cover a sleeping victim (see, People v Beecher, 225 AD2d 943; People v Thiessen, 158 AD2d 737, mod 76 NY2d 816; People v Irving, 151 AD2d 605; People v Copp, 169 Misc 2d 757, 758-759), particularly where, as here, there is strong evidence that the victim's sleep was drug and alcohol induced (compare, People v Thiessen, supra). At trial, the victim testified that in the early morning hours of October 16, 1999, following a night of partying with friends, she was asleep in her bed when awoken by the feeling of pain from "someone" on top of her having sexual intercourse. According to the victim, she did not initially realize that it was in fact defendant. Rather, when she told her attacker to stop, defendant told her that he was someone else. After the victim hit defendant in the chest to get him to stop, he rolled off her, grabbed her face and laughingly informed her that he might not have revealed his true identity. At this point, according to the victim, she realized that her attacker was defendant and she ran out of the bedroom. At trial, the victim unequivocally testified that she did not consent to any sexual activity with defendant as she was asleep and immediately protested when she became aware of what was happening.

There was also evidence adduced at trial that various investigators and police detectives monitored two conversations between defendant and the victim following the incident. Although an attempt to tape record the first conversation was unsuccessful, an investigator and detective who overheard same via a monitoring device each testified about what they heard. According to them, during this initial conversation, when the victim demanded an explanation from defendant for his conduct, defendant indicated that he did not have an answer except to say that he had been drinking alcohol that night. Moreover, according to the investigator and detective, d...