People v. Yontz

• Citation: 983 N.Y.S.2d 694,116 A.D.3d 1242,2014 N.Y. Slip Op. 02629
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael T. YONTZ, Appellant.
• Decision Date: 17 April 2014
• Court: New York Supreme Court Appellate Division

116 A.D.3d 1242
983 N.Y.S.2d 694
2014 N.Y. Slip Op. 02629

The PEOPLE of the State of New York, Respondent,
v.
Michael T. YONTZ, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 17, 2014.

[983 N.Y.S.2d 695]

David E. Woodin, Catskill, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY and GARRY, JJ.

LAHTINEN, J.P.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered September 16, 2011, upon a verdict convicting defendant of the crime of rape in the first degree.

Defendant and the victim lived in the same apartment complex, and defendant had occasionally assisted in chores or errands for the victim, who suffered from a variety of maladies. According to the victim, defendant had previously propositioned her for sex, but she had flatly refused. In late March 2011, she fell ill and defendant allegedly discovered her in an unconscious state in her apartment. He then engaged in sexual intercourse with

[983 N.Y.S.2d 696]

her and, subsequently, acknowledged such conduct in two statements to police. Defendant was indicted for—and eventually found guilty by a jury of—rape in the first degree based upon sexual intercourse while the victim was physically helpless. County Court sentenced him to 18 years in prison with 10 years of postrelease supervision. Defendant now appeals.

We consider first defendant's arguments that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. The charged crime required the People to prove that defendant engaged in sexual intercourse with the victim when she was “incapable of consent by reason of being physically helpless” (Penal Law § 130.35[2] ), and “ ‘[p]hysically helpless' means that a person is unconscious or for any reason is physically unable to communicate unwillingness to act” (Penal Law § 130.00[7]]; see People v. Cecunjanin, 16 N.Y.3d 488, 491, 922 N.Y.S.2d 258, 947 N.E.2d 149 [2011];People v. Shepherd, 83 A.D.3d 1298, 1298, 921 N.Y.S.2d 666 [2011],lv. denied17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). Defendant's second statement to police acknowledged that, after picking up prescriptions for the victim, he returned to her apartment finding her in bed in a condition characterized as “very sick,” “going in and out of sleep” and “very out of it.” Deciding that he wanted sex, he disrobed her and commenced intercourse while she was, according to his statement, “still in and out of sleep.” After finishing, he recalled that he cleaned up and dressed in her bathroom. There was also proof at trial that, when the victim was discovered later that day by family members, she was in bed naked, unconscious and had bruises on her leg. Defendant's wallet was found on the bathroom floor in her apartment. She was taken to a hospital where she remained for nearly two weeks, she did not recover consciousness for five days, and DNA testing confirmed that defendant had sexual intercourse with her. Contrary to defendant's assertion, defendant's confession was adequately corroborated ( seeCPL 60.50; People v. Lapi, 105 A.D.3d 1084, 1086, 962 N.Y.S.2d 768 [2013],lv. denied21 N.Y.3d 1043, 972 N.Y.S.2d 541, 995 N.E.2d 857 [2013];People v. Button, 56 A.D.3d 1043, 1045, 867 N.Y.S.2d 768 [2008],lv. dismissed12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009];People v. Cole, 24 A.D.3d 1021, 1024–1025, 807 N.Y.S.2d 166 [2005],lv. denied6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006] ).

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