Opinion
May 26, 1998
Appeal from the County Court, Orange County (Berry, J.).
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; § 130.35 Penal [2]; § 130.50 Penal [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; People v. Cirina, 143 A.D.2d 763). 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).
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., Ritter, Sullivan and Pizzuto, JJ., concur.