Opinion
1750
October 3, 2002.
Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered September 6, 2000, convicting defendant, after a jury trial, of two counts of sexual abuse in the first degree, and sentencing him to consecutive terms of 5 years, unanimously affirmed.
SANDRA E. CAVAZOS, for respondent.
CARL S. KAPLAN, for defendant-appellant.
Before: Nardelli, J.P., Saxe, Rosenberger, Friedman, Marlow, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant, who was hospitalized for physical reasons only, was convicted of sexually abusing two of his fellow hospital patients in violation of Penal Law § 130.65(2), which applies when the victim "is incapable of consent by reason of being physically helpless". "OPhysically helpless' means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act" (Penal Law § 130.00).
The People established that both victims were so severely handicapped that they were not capable of communicating an unwillingness to act. While there was evidence that each victim could make reflexive body motions, the evidence did not warrant a conclusion that either victim was capable of making voluntary movements designed to communicate unwillingness (compare, People v. Huurre, 193 A.D.2d 305, affd 84 N.Y.2d 930).
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.