[461] Mitch Kessler, Cohoes, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, SMITH, PIGOTT and JONES concur.

OPINION OF THE COURT

READ, J.

On March 19, 2003, defendant James W. Newton, Jr. was indicted for the crimes of sodomy in the first degree (Penal Law § 130.50 [1]), sexual abuse in the first degree (Penal Law § 130.65 [1]) and sodomy in the third degree (Penal Law § 130.40 [3]).^[1] The three-count indictment accused defendant of engaging in oral sex with a 19-year-old male by forcible compulsion [462] and without consent (by virtue of something other than incapacity). In light of these allegations, a declaration of delinquency charged defendant with violating the conditions of the sentence of probation imposed upon him in 2000 after his conviction for second-degree assault. Defendant contended that the alleged victim did not resist or otherwise communicate a lack of consent, and that he perceived the sexual act to be consensual. It is undisputed that defendant had been consuming beer steadily in the hours before this incident.

At trial, defense counsel asked the court to instruct the jury on intoxication with respect to both sodomy counts (see Penal Law § 15.25 [while "(i)ntoxication is not, as such, a defense to a criminal charge," evidence of a defendant's intoxication may be offered whenever "relevant to negative an element of the crime charged"]).^[2] Instead, the court charged the jury on intoxication with respect to first-degree sodomy only, reasoning that this crime called for the factfinder to conclude beyond a reasonable doubt that defendant intended to engage in forcible compulsion (see People v Williams, 81 NY2d 303, 316-317 [1993] ["intent is implicitly an element of" first-degree rape and first-degree sodomy, and "(t)he intent required is the intent to perform the prohibited act—i.e., the intent to forcibly compel another to engage in intercourse or sodomy"]; see also People v Perry, 61 NY2d 849 [1984] [charge on intoxication should be given if there is sufficient evidence in the record for a reasonable person to entertain a doubt as to whether defendant possessed the requisite mental state, such as intent, on that basis]).

Regarding third-degree sodomy, however, the court instructed the jury that "intoxication is not a defense under any circumstances" because there was no element of intent or other subjective mental state required for this crime. "Rather, ... sodomy in the third degree involves an allegation that a reasonable person in the defendant's situation would have understood the... alleged victim's words and acts as an expression of a lack of consent." As a result, the court charged the jury that "if the defendant failed to so understand solely as a result of intoxication[,] such would not be a defense under the law" to third-degree sodomy. The jury ultimately acquitted defendant of sodomy in the first degree, and convicted him of sodomy in the third degree.

[463] Defendant subsequently pleaded guilty to the violation of probation, with the understanding that the trial judge would impose a determinate sentence of five years of imprisonment to be followed by three years of postrelease supervision, which would run concurrently with his sentence for the sodomy conviction. On March 5, 2004, the court sentenced defendant as a second felony offender to an indeterminate prison term of 2 to 4 years for the sodomy conviction, and to the agreed-upon concurrent sentence for the violation of probation. The Appellate Division affirmed the judgment of conviction, rejecting defendant's argument that the trial court should have instructed the jury to consider intoxication in connection with the third-degree sodomy charge. A Judge of this Court granted defendant leave to appeal, and we now affirm.

To be guilty of third-degree sodomy under Penal Law § 130.40 (3), defendant was required to have engaged in the sexual act "with another person without such person's consent where such lack of consent [was] by reason of some factor other than incapacity to consent." The Sexual Assault Reform Act fleshed out this crime by specially defining "lack of consent" for purposes of third-degree sodomy as

"circumstances under which, at the time of the [sexual act], the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances" (Penal Law § 130.05 [2] [d]).

This provision was

"designed to address the so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor's situation would understand that the victim was expressing a lack of consent" (Donnino, Main Volume Supp Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 130, at 220 [citation and internal quotation marks omitted]).

Further,

"[t]he use of the term `reasonable person' in the [464] `actor's situation' imports an objective element into the determination of whether there was a clear expression of non-consent to the [sexual act]. Although the `reasonable person' must stand in the shoes of the actor, if such a person would understand that the victim was expressing a lack of consent, then it does not matter that the accused thought otherwise" (id. at 220-221 [emphasis added and citation omitted]).

In short, the proper inquiry for the factfinder is not whether a defendant actually perceives a lack of consent, but whether the victim, by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting. Otherwise, it would not be enough for a victim simply to say "No." Every prosecution would devolve into a dispute over whether the particular defendant might have misapprehended whether "No" really meant "No" for one reason or another. As the People point out, if the Legislature had, in fact, intended to take a defendant's subjective mental state into account, it could have drafted the statute to require the accused to know or have reason to know that the victim was not consenting; or the Legislature could have furnished an accused with an affirmative defense of lack of knowledge (see e.g. Penal Law § 130.10 [1] [providing for an affirmative defense of lack of knowledge of incapacity where victim's lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness]).

Because a defendant's subjective mental state is not an element of the crime of third-degree sodomy, evidence of intoxication at the time of the sexual act is irrelevant. Thus, the trial judge in this case properly declined to instruct the jury on intoxication with respect to the charge of this crime.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] The Sexual Assault Reform Act (L 2000, ch 1), as subsequently amended, modernized the nomenclature used to describe certain crimes and terms in article 130 of the Penal Law. As a result, "sodomy" was later renamed "criminal sexual act" (see L 2000, ch 1, § 56; L 2003, ch 264, §§ 18, 20, 71).

[2] The trial judge had already dismissed the count alleging sexual abuse in the first degree.

Rose, Lahtinen, Stein and Garry, JJ., concur.

Peters, P.J.

Defendant and the victim met in November 2007 when defendant sent her a message through Facebook, an on-line social networking website, but their brief interaction ended once the victim informed defendant that she had a boyfriend. Approximately two months later, the victim, having broken up with her boyfriend, reached out to defendant via Facebook [1243] informing him that she was bored and wanted to get out of her house. After the two exchanged messages for a few hours, during which the victim asked defendant to pick her up, said "I'm yours for as long as you want," told defendant that she thought he was "hot" and affirmed that she was "of age," defendant picked up the victim down the street from her house and drove her back to his apartment in the City of Schenectady, Schenectady County.

Shortly after arriving at defendant's apartment, defendant's friend came over and he and defendant left to buy alcohol. They returned with a box of wine, after which defendant allegedly poured some for the victim and the three began drinking. At some point soon thereafter, the victim took off her shirt, unzipped her pants, and danced around the living room for defendant and his friend. At approximately 6:00 P.M., defendant's friend left and, according to the victim, she and defendant then engaged in oral, vaginal and anal sex without her consent. Defendant drove the victim back to her house later that evening and, shortly after her arrival, the victim disclosed that she had been raped.

Defendant was thereafter indicted on four counts of rape in the first degree, three counts of criminal sexual act in the first degree, rape in the third degree, criminal sexual act in the third degree and unlawfully dealing with a child in the third degree.^[1] Following a jury trial, defendant was convicted of rape in the third degree, criminal sexual act in the third degree and unlawfully dealing with a child in the third degree, but was acquitted of the remaining rape and criminal sexual act counts, all of which were based on forcible compulsion. Supreme Court sentenced defendant to one year in jail on each count, to run concurrently. He now appeals.

Defendant claims that his convictions for rape in the third degree and criminal sexual act in the third degree were against the weight of the evidence. At trial, defendant admitted that he and the victim engaged in sexual intercourse and oral sexual conduct on the day in question, but testified that the sexual encounter was consensual. Because a different verdict would not have been unreasonable in light of this testimony, we "must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internal quotation marks and citations omitted]; accord People v Shepherd, 83 AD3d 1298, [1244] 1298 [2011], lv denied 17 NY3d 809 [2011]; see People v Stearns, 72 AD3d 1214, 1215 [2010], lv denied 15 NY3d 778 [2010]).

Here, the victim testified to the numerous sexual acts that defendant subjected her to and asserted that, throughout the duration thereof, she cried, pushed defendant away and repeatedly said "no." Evidence was also presented that the victim informed an emergency room nurse who treated her at the hospital that evening that she said "stop," "no" and was crying throughout the incident. Defendant argues that the victim's reliability is manifestly suspect and that her testimony is unworthy of belief, citing the numerous inconsistencies within her trial testimony, as well as between her testimony and her prior statements, as to the sequence and details of the sexual acts and where such acts took place within defendant's apartment, and her concession during cross-examination that "[she] can't remember everything exactly the way it happened." Although certain aspects of the victim's testimony are troublesome, she steadfastly maintained that she never consented to the sexual acts with defendant, and the various inconsistencies were fully explored during cross-examination and ultimately presented a credibility issue for the jury to resolve (see People v Shepherd, 83 AD3d at 1299; People v King, 79 AD3d 1277, 1279 [2010], lv denied 16 NY3d 860 [2011]; People v Stearns, 72 AD3d at 1216; People v Weber, 25 AD3d 919, 921 [2006], lv denied 6 NY3d 839 [2006]). While the jury's verdict acquitting defendant of all the forcible rape charges reflects that it rejected outright the victim's testimony that she complied with defendant's sexual directives because she feared defendant would kill her with his gun, the jury was entitled to "accept some of the victim['s] testimony while rejecting other portions of it" (People v Wagner, 72 AD3d 1196, 1197 [2010], lv denied 15 NY3d 779 [2010]; see People v Kuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007]; People v Bush, 14 AD3d 804, 804-805 [2005], lv denied 4 NY3d 852 [2005]). After independently reviewing and weighing the evidence, we are unpersuaded that the jury's credibility determinations should be disturbed or that the verdict on these counts is against the weight of the evidence (see People v Shepherd, 83 AD3d at 1299; People v Beauharnois, 64 AD3d 996, 999 [2009], lv denied 13 NY3d 834 [2009]). Furthermore, given the victim's testimony that defendant poured her a cup of wine and the testimonial and forensic evidence establishing that the victim was intoxicated when she returned from defendant's apartment, defendant's conviction for unlawfully dealing with a child in the third degree is likewise supported by the weight of the evidence (see People v St. Andrews, 82 AD3d 1358, 1359-1360 [2011], lv denied 17 NY3d 821 [2011]).

[1245] Supreme Court properly precluded evidence regarding the victim's sexual behavior towards defendant's friend while at defendant's apartment pursuant to CPL 60.42. CPL 60.42, the Rape Shield Law, prohibits the introduction of "[e]vidence of a victim's sexual conduct" in a prosecution for a sex offense under Penal Law article 130, unless one of five statutory exceptions applies. "`The first four allow evidence of a complainant's prior sexual conduct in narrowly defined factual circumstances,' and the fifth, the subdivision at issue here, `vest[s] discretion in the trial court'" (People v Scott, 16 NY3d 589, 594 [2011], quoting People v Williams, 81 NY2d 303, 311 [1993]). Under this exception, evidence of a victim's prior sexual conduct may be introduced where such evidence "is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice" (CPL 60.42 [5] [emphasis added]; see People v Williams, 81 NY2d at 311-312).^[2]

Here, prior to the testimony of defendant's friend, the People stated on the record that it was their "understanding" that the friend would testify that the victim asked him to touch her sexually or that the friend touched her sexually while at defendant's apartment, and sought a ruling that any such testimony would be inadmissible under CPL 60.42. Although provided with an opportunity to do so, defense counsel did not make an offer of proof, as was his obligation under CPL 60.42 (5), or otherwise clarify what the friend's testimony would be (see People v Williams, 81 NY2d at 314-315). Evidence that the friend touched the victim sexually while at defendant's apartment does not indicate that the victim was willing to engage in sexual relations with anyone, including the friend, and is irrelevant to the issue of whether her sexual relations with defendant were consensual. Given the uncertainty as to what the friend's [1246] testimony would be, we cannot conclude that Supreme Court abused its discretion in declining to admit the proposed evidence under the interests of justice exception (see People v Schafer, 81 AD3d 1361, 1363 [2011], lv denied 17 NY3d 861 [2011]; People v Monko, 162 AD2d 553, 554-555 [1990], lv denied 76 NY2d 861 [1990]). Even were we to conclude that the offer of proof was sufficient, we would still find that Supreme Court acted within its discretion in precluding such evidence. It has been routinely held that a victim's willingness to engage in sexual conduct with one person around the time of the incident in question is not indicative of a concomitant desire to consent to such behavior with another (see People v Wilhelm, 190 Mich App 574, 585, 476 NW2d 753, 759 [1991], lv denied 439 Mich 1013 [1992]; Ellis v State, 181 Ga App 630, 632, 353 SE2d 822, 825 [1987]; State v Bevins, 140 Vt 415, 419, 439 A2d 271, 273 [1981]; Commonwealth v Folino, 293 Pa Super 347, 355-357, 439 A2d 145, 149-50 [1981]; see also People v McLaurin, 27 AD3d 1117, 1118 [2006], lv denied 7 NY3d 759 [2006]; People v Grantier, 295 AD2d 988, 988 [2002], lv denied 99 NY2d 535 [2002]). Indeed, the inference that defendant sought to establish by the proffered evidence is precisely that which the Rape Shield Law sought to prevent (see generally People v Williams, 81 NY2d at 312; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 60.48). Thus, it cannot be said that Supreme Court's decision to exclude such evidence constituted an abuse of discretion under the circumstances (see People v McLaurin, 27 AD3d at 1118; People v Grantier, 295 AD2d at 988; People v White, 261 AD2d 653, 655-656 [1999], lv denied 93 NY2d 1029 [1999]).

Finally, defendant's challenge to Supreme Court's Allen charge was not preserved for our review by an objection at trial (see CPL 470.05 [2]; People v Pomales, 49 AD3d 962, 964 [2008], lv denied 10 NY3d 938 [2008]; People v Frary, 29 AD3d 1223, 1225-1226 [2006], lv denied 7 NY3d 788 [2006]). In any event, were we to consider the issue, we would find that the charge as a whole was balanced and proper rather than coercive (see People v Alvarez, 86 NY2d 761, 763 [1995]; People v Ford, 78 NY2d 878, 880 [1991]; People v Rich, 78 AD3d 1200, 1201 [2010], lv denied 17 NY3d 799 [2011]; People v Price, 188 AD2d 681, 682 [1992], lv denied 81 NY2d 891 [1993]).

Ordered that the judgment is affirmed.

[1] The People subsequently withdrew one count of criminal sexual act in the first degree from the indictment.

[2] Although defendant now argues that the evidence precluded does not fall within the purview of the Rape Shield Law because it did not constitute evidence of sexual conduct, but rather evidence of statements made by the victim concerning sexual conduct (see People v Jovanovic, 263 AD2d 182, 193 [1999], appeal dismissed 95 NY2d 846 [2000]), this argument was not specifically made to Supreme Court and, therefore, is not preserved for our review (see CPL 470.05 [2]; People v Curry, 11 AD3d 150, 156-157 [2004], lv denied 4 NY3d 743 [2004]; People v White, 261 AD2d 653, 656 [1999], lv denied 93 NY2d 1029 [1999]). In addition, since defendant did not assert a constitutional right to introduce the excluded evidence, his constitutional argument is also unpreserved (see People v Angelo, 88 NY2d 217, 222 [1996]; People v Schafer, 81 AD3d 1361, 1363 [2011], lv denied 17 NY3d 861 [2011]; People v Mitchell, 10 AD3d 554, 555 [2004], lv denied 3 NY3d 759 [2004]).

Bongiorno & Averna, Garden City, for defendant. Denis Dillon, District Attorney of Nassau County, Mineola (Robert L. Ostrov of counsel), for plaintiff.

JOHN MICHAEL GALASSO, J.

Defendant moves for an order dismissing the information pursuant to CPL 100.40 (1) (b), (c); 170.30 (1) (a), (f), (g) and 170.35.

Defendant was charged with sexual misconduct in violation of Penal Law § 130.20 (1) which provides:

"A person is guilty of sexual misconduct when:

[998] "1. Being a male, he engages in sexual intercourse with a female without her consent."

The information states that the defendant, the twin brother of complainant's boyfriend, deceived the complainant into having sexual intercourse with him without her consent.

The relevant facts contained in the complainant's statement are as follows: On March 28, 1993 at approximately 3:30 A.M. complainant was sleeping in her apartment which she left unlocked because she was expecting her boyfriend, Lenny Hough, to come over. Complainant was awakened by a knock and believed that it was her boyfriend at the door. She thought that he had forgotten the key she had given to him. (It is interesting to note that complainant states that she left the door unlocked for her boyfriend, yet she stated that she had just given him a key.)

Complainant instructed the male to come in believing it was Lenny, her boyfriend. After the light was turned on, complainant realized that the male was not Lenny but was his twin brother, the defendant, Lamont Hough. They talked shortly and complainant told defendant to lock the door when he left. The complainant then went back to sleep but was again awoken at approximately 5:00 A.M. when she heard a knock at the door and heard a male say "open the door". Complainant believed the male was her boyfriend because it sounded like him. Complainant got out of bed and, curiously enough, turned off the light located near the door rather than turn it on. Complainant opened the door and thought it was Lenny who entered the apartment, as it was dark and she couldn't see. The two spoke momentarily and then complainant returned to bed. The male, who smelt of alcohol, also got into bed next to the complainant. Complainant began talking to the male as if it were her boyfriend Lenny but was looking away from him while they were in the bed. The complainant asked the male why he didn't use the key she gave him and he said he either lost it or left it at his father's house.

The male began to touch the complainant's breasts and complainant responded "Oh boy, you're drunk and horny." He then asked her to have sex with him and she told him to make it quick because she had to work in the morning. Complainant removed her clothing and was calling him Lenny. The male then took off his clothing and got on top of the complainant and inserted his penis into her vagina. They had intercourse for several minutes during which time complainant [999] wasn't looking at the male's face. When the act was over, the male said, "Was that the best sex you ever had?" and "What are you going to tell Lenny?" Complainant got out of bed, turned the light on and saw that it was Lamont and not Lenny that she had sexual intercourse with. Complainant threw the defendant's clothes out the door and defendant left. Shortly thereafter, complainant contacted the police.

On August 13, 1993 defendant was charged with sexual misconduct and arraigned; defendant pleaded not guilty and now moves to dismiss the charges.

Assuming arguendo that the complainant's version of the facts is correct, the issue presented before this court is whether a female actually consents to sexual intercourse with a male who procures the female's consent by impersonating the female's boyfriend.

Penal Law § 130.20 must be read in conjunction with section 130.05 which provides the definition of lack of consent. Under the statute, lack of consent results from forcible compulsion or incapacity to consent. A person is incapable of consent when he or she is less than 17 years old or mentally defective or mentally incapacitated or physically helpless. Where the offense charged is sexual abuse, however, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor's conduct may be considered as lack of consent.

The lack of consent which forms the basis of the charge against defendant is not claimed to have been by forcible compulsion or the complainant's incapacity to consent. Rather, the lack of consent results from the complainant's mistaken belief resulting from defendant's alleged fraud that the body she made love with was that of her boyfriend.

At the outset it should be noted for defense counsel that the particular act committed in the present case is distinguishable from seduction. Seduction involves allurement, enticement or persuasion to overcome unwillingness or resistance. (People v Evans, 85 Misc 2d 1088.) In seduction, the consent is procured by flattery and deception. The distinguishing feature between seduction and the act at hand is the fact that in seduction the victim knows who she is having sex with. While it is true that this State's public policy unfavorably views actions for seduction, that view does not apply to the present case which facts do not spell out seduction.

Nor is this case comparable to Mills v United States (164 US 644 [1897]) [1000] as defense counsel would suggest. Defense counsel cites the Mills case for the proposition that deceit cannot be used to replace elements required by the statute. However, in Mills the issue was whether the victim's failure to physically resist intercourse amounted to consent where defendant was charged with rape. The Court held that where a woman possesses mental and physical powers and is not terrified by threats nor in a position that resistance would be useless, her failure to resist intercourse amounts to consent. Deceit was not at issue. The present case is readily distinguishable from the Mills case. Consequently, defendant's conclusion that deceit cannot be used to replace elements required by the statute is erroneous.

The crime of sexual misconduct overlaps with the crime of rape. Sexual misconduct represents the higher degrees of rape and sodomy and it also represents the two lowest degrees of rape.

This court has been unable to discover any authority for the factual circumstances presented in this case where the charge is sexual misconduct. Even where the charge is rape in the classic situation where the woman is forced to submit to sexual intercourse, there is little authority. Truly, these facts present a novel issue.

In general, in the absence of a statute, where a woman is capable of consenting and does consent to sexual intercourse, a man is not guilty of rape even though he obtained the consent through fraud or surprise. (75 CJS, Rape, § 16, citing Whittaker v State, 50 Wis 518, 7 NW 431.) The reason is that in the traditional definition of the crime of rape, the sexual intercourse must have been achieved "by force", or "forcibly".

A few courts have indicated that consent to sexual intercourse may be vititated, and the crime committed where defendant achieved the sexual intercourse by impersonating the woman's husband. The court in People v Bartow (1 Wheel Cr Cas 378 [1823]) indicated that force may not be necessary, that fraud might take its place. However, in a later case, Walter v People (50 Barb 144, 147, 1 Cow Cr Rep 344, 346 [1867]), the court refused to give that "loose statement" any consideration.

A number of States have enacted statutes which extend the traditional definition of rape to include sexual intercourse achieved by fraud or impersonation. For instance, in Arizona a former statute defined the crime of rape to include the [1001] situation: "Where the female submits under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense or concealment practiced by the accused with intent to induce such belief." (Former Ariz Rev Stat § 13-611.) In State v Navarro (90 Ariz 185, 367 P2d 227 [1961]), defendant was convicted of rape where he had sexual intercourse with the complainant as he awoke her from sleeping; defendant pretended to be her husband.

In North Carolina, a former statute provided punishment for "any person who shall have had carnal knowledge of any married woman by fraud in personating her husband." (Former NC Code Gen Stat § 1103, L 1881, ch 89.)

Additionally, the Model Penal Code makes it a crime for a male to have sexual intercourse with a female when he knows that she submits because she mistakenly supposes that he is her husband. (Model Penal Code § 213.1 [2].)

It is a basic tenet of statutory law that where the Legislature fails to include a matter within the scope of an act, its exclusion was intended. McKinney's Consolidated Laws of NY, Book 1, Statutes § 74 provides: "A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended."

Another basic rule of statutory construction is that the courts should avoid judicial legislation. McKinney's Consolidated Laws of NY, Book 1, Statutes § 73 provides: "The courts in construing statutes should avoid judicial legislation; they do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers."

Based upon these two basic premises, the court has no choice but to dismiss the charge of sexual misconduct against the defendant.

The Legislature defined lack of consent in Penal Law § 130.05 and intended to exclude cases of fraud or impersonation. Where the Legislature intended to extend the definition of lack of consent, it did. For instance, lack of consent as applied to the crime of sexual abuse is extended to "any circumstances * * * in which the victim does not expressly or impliedly acquiesce in the actor's conduct." (Penal Law § 130.05 [2] [c].)

[1002] For the charge of sexual misconduct, however, lack of consent has been defined by the Legislature and does not include the particular circumstances in the present case. Consequently, assuming that defendant did deceive the complainant into having sexual intercourse with him, defendant cannot be found guilty of sexual misconduct.

It should be emphasized that this decision is not concluding that the defendant did not do anything wrong if he did indeed deceive the complainant into having sexual intercourse with him through fraud. Instead, what this court is saying is that the District Attorney's office has charged the defendant with the wrong crime. In other words, the allegations of fact contained in the accusatory instrument do not contain all of the elements which are required to find the defendant guilty of sexual misconduct (Penal Law § 130.20). The People may, if they wish, file another accusatory instrument charging the defendant with another crime that encompasses the defendant's conduct.

Based upon the foregoing, defendant's motion is granted and the information is hereby dismissed.

Peters, P.J., Spain and Egan Jr., JJ., concur.

Garry, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 24, 2010, upon a verdict convicting defendant of the crimes of criminal sexual act in the first degree (two counts), sexual abuse in the first degree, rape in the first degree, sexually motivated felony and unauthorized use of a vehicle in the third degree.

In February 2009, the victim, who had spent an evening drinking in the City of Ogdensburg, St. Lawrence County, encountered defendant at a bar. Defendant allegedly approached the victim and "brush[ed] up against her" repeatedly in spite of her efforts to rebuff him. The victim became ill due to her intoxication, and her cousin, the cousin's husband and defendant took her to her home later that night. The cousin and defendant assisted the victim upstairs and put her to bed, where the victim allegedly asked the cousin to make sure defendant left the house, and then fell asleep. The cousin testified that defendant refused to leave the house at her request and did not do so until the cousin's husband intervened. The cousin and husband offered defendant a ride to his home but, at his request, dropped him off instead at a friend's apartment that was closer to the victim's home. Sometime during the next hour, the victim allegedly awoke to find defendant in her bed, having vaginal intercourse with her.

The initial grand jury indictment charging defendant with several counts was dismissed by County Court. The People then obtained DNA evidence and, with leave from the court, represented the case to a new grand jury. Defendant was indicted on seven counts, including some upon which the first grand jury had deadlocked. He moved to dismiss the previously deadlocked counts on the ground that his statutory speedy trial rights had [1259] been denied, and the court denied the motion. Following a jury trial, defendant was found guilty of criminal sexual act in the first degree (two counts), sexual abuse in the first degree, rape in the first degree, burglary in the second degree as a sexually motivated felony and unauthorized use of a vehicle in the third degree. County Court sentenced him as a second violent felony offender to concurrent prison terms of 15 years on the criminal sexual act counts, 15 years on the sexually motivated felony count, seven years on the sexual abuse count and one year for unauthorized use of a vehicle, with 15 years of postrelease supervision. He was further sentenced to a prison term of 18 years on the rape count with 20 years of postrelease supervision, to run consecutively with his sentences on the other counts. Defendant appeals.

Initially, we reject defendant's claim that he was denied his statutory right to a speedy trial as to the charges on which the first grand jury deadlocked. Pursuant to CPL 30.30 (1) (a), the People must be ready for trial within six calendar months of the commencement of a criminal action charging a defendant with a felony, "which occurs with the filing of the first accusatory instrument" (People v Prunier, 100 AD3d 1269, 1270 [2012]). Here, the action was commenced by filing a felony complaint on February 14, 2009, and the People declared readiness for trial 10 days later. The first indictment was dismissed on September 28, 2009, and the People declared readiness on the second indictment 38 days thereafter on November 5, 2009, for a total of only 48 days chargeable to the People. Contrary to defendant's claim, the speedy trial "clock" did not continue to run after the first declaration of readiness as to the charges on which the grand jury deadlocked. These charges were "directly derived" from the first accusatory instrument (CPL 1.20 [16] [b]), and as they are "sufficiently related to apply the same commencement date, they are likewise sufficiently related for purposes of applying excludable time" (People v Farkas, 16 NY3d 190, 194 [2011]; see People v Sinistaj, 67 NY2d 236, 237 [1986]; People v Pope, 96 AD3d 1231, 1232 [2012]; People v Galloway, 93 AD3d 1069, 1070 [2012], lv denied 19 NY3d 996 [2012]).

Next, defendant contends that, with the exception of the conviction for unauthorized use of a vehicle in the third degree, his convictions are not supported by legally sufficient evidence. Although he failed to preserve this claim by renewing his trial motion to dismiss following the People's presentation of rebuttal evidence (see People v Valentin, 95 AD3d 1373, 1374 [2012], lv denied 19 NY3d 1002 [2012]; People v Garcia, 79 AD3d 1248, 1250 [2010], lv denied 16 NY3d 797 [2011]), he also challenges [1260] the weight of the evidence, and such review requires this Court to determine whether evidence supports each element of the crimes (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Townsend, 94 AD3d 1330, 1330 n 1 [2012], lv denied 19 NY3d 1105 [2012]). We find that defendant's convictions of criminal sexual act in the first degree must be reversed. "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed" (CPL 60.50). While this additional proof "need not corroborate every detail of the confession" (People v Morgan, 246 AD2d 686, 686 [1998], lv denied 91 NY2d 975 [1998]), both of defendant's criminal sexual act convictions were based solely upon his uncorroborated admissions that he performed oral sex on the victim. Defendant's presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether the crimes occurred at all. As there was no corroborating proof "of whatever weight," these charges must be dismissed (People v Daniels, 37 NY2d 624, 629 [1975]; see People v Porlier, 55 AD3d 1059, 1062 [2008]; People v McAuliffe, 220 AD2d 859, 860-861 [1995]).

We reject defendant's contention that the People did not meet their burden to prove that the victim was physically helpless. For purposes of defendant's convictions for sexual abuse in the first degree and rape in the first degree, a person is physically helpless when he or she "is unconscious or for any other reason is physically unable to communicate unwillingness to an act" (Penal Law § 130.00 [7]; see Penal Law §§ 130.35 [2]; 130.50 [2]; 130.65 [2]). A person who is asleep or unable to communicate as a result of voluntary intoxication is considered to be physically helpless (see People v Morrow, 304 AD2d 1040, 1042 [2003], lv denied 100 NY2d 564 [2003]; People v Himmel, 252 AD2d 273, 275-276 [1999], lv denied 93 NY2d 899 [1999]). Here, the victim testified that she consumed a substantial amount of alcohol on the evening in question, was intoxicated from the time she visited the bar where she met defendant until she arrived at the hospital the following morning and, as a result, has little memory of the latter part of the evening and no memory at all of the period when she was at home before waking to find defendant in her bed. Other witnesses who were with the victim that night testified that she was very intoxicated, slurred her words, staggered, was nauseous, could not keep her head up while speaking and fell asleep upon being put to bed. A police officer who interviewed her at the hospital the next morning testified that her eyes were bloodshot and she smelled of alcohol, and a test administered at 9:45 a.m. revealed that her blood alcohol content was .09.

[1261] Defendant did not testify at trial but, in his testimony before both grand juries — which was read to the trial jury — he claimed, among other things, that the victim was "[n]ot intoxicated to the point where she didn't know what was going on" and that, when he returned to her house after being dropped off at his friend's home, she answered the door and let him inside. He asserted that she then initiated sexual contact between them and allowed him to perform oral sex on her and to insert his fingers into her vagina. However, he denied that any vaginal intercourse occurred, claiming that he could not achieve an erection and that, upon realizing this, the victim directed him to get off her and leave, which he did. Notably, whether a victim is physically helpless is a question of fact for the jury to resolve and, upon our independent review, we find no reason to disturb its credibility determinations in this regard (see People v Manning, 81 AD3d 1181, 1181 [2011], lv denied 18 NY3d 959 [2012]; People v Thomas, 21 AD3d 643, 645 [2005], lv denied 6 NY3d 759 [2005]; People v Sensourichanh, 290 AD2d 886, 887-888 [2002]).

Given this conclusion, the victim's testimony that vaginal intercourse was occurring when she awoke, and DNA test results indicating that defendant's sperm was present in her vagina, we find that defendant's conviction for rape in the first degree is not against the weight of the evidence (see People v Shepherd, 83 AD3d 1298, 1298-1299 [2011], lv denied 17 NY3d 809 [2011]; People v Fuller, 50 AD3d 1171, 1174 [2008], lv denied 11 NY3d 788 [2008]). Likewise, based on the DNA evidence and defendant's admission that he placed his fingers — with sperm on them resulting from a premature orgasm — in the victim's vagina, we will not disturb the conviction for sexual abuse in the first degree (see People v Wicks, 73 AD3d 1233, 1234 [2010], lv denied 15 NY3d 857 [2010]; People v Fuller, 50 AD3d at 1174-1175; People v Stasiak, 25 AD3d 1025, 1026 [2006]).

Defendant did not, as he contends, prove his affirmative defense that, at the time he committed the sexual offenses based on physical helplessness, he "did not know of the facts or conditions responsible for [the victim's] incapacity to consent" (Penal Law § 130.10 [1]). In this regard, he relies on his grand jury testimony that the victim was neither unconscious during their encounter nor so intoxicated that she did not understand what was occurring, as well as expert trial testimony to the effect that the victim would have shown no signs — other than heavy intoxication — of the "blackout" that later kept her from remembering the encounter. However, the jury was not required to credit defendant's version of events, and plainly did not do so. Given the victim's testimony that she awoke from sleep to [1262] find defendant having sex with her and the extensive evidence of her severe intoxication while in defendant's company shortly before the offenses were committed — including testimony that she was barely conscious when she reached her home and almost immediately fell asleep — we have no difficulty in concluding that defendant did not meet his burden to establish this defense by a preponderance of the evidence (see Penal Law § 25.00 [2]).

We are unpersuaded by defendant's claim that his conviction for burglary in the second degree as a sexually motivated felony must be reversed because the People failed to prove beyond a reasonable doubt that he entered the victim's home "when he [was] not licensed or privileged to do so" (Penal Law § 140.00 [5]; see Penal Law §§ 130.91 [1]; 140.25). Defendant claims that the victim let him into her home, and he argues that this is the only reasonable explanation for his presence inside, given the undisputed evidence that the door was locked and the absence of any showing of forced entry. However, no such showing was required (see e.g. People v Berry, 275 AD2d 748, 748 [2000], lv denied 96 NY2d 732 [2001]). The victim testified that she did not let defendant in and that she was asleep before she woke to find defendant in her bed. While she qualified this testimony by acknowledging on cross-examination that she had no memory of the time period in question and did not know whether or not she opened the door, the jury was free to accept or reject any testimony and was not required to credit defendant's claim that she did so (see People v Hargett, 11 AD3d 812, 814 [2004], lv denied 4 NY3d 744 [2004]). There was considerable evidence that the victim had repeatedly rebuffed defendant's attentions earlier in the evening and, after allowing him to help her to return home, had stated that she did not want him to remain there. The cousin testified that when she left the victim's home with defendant, he told her that the door was locked but that she checked, and in fact it was not. He offered several inconsistent explanations for his subsequent refusal of the offer of a ride to his own home and his surreptitious return to the victim's home. Finally, in addition to testimony that the victim sometimes left a spare key in her mailbox, there was evidence that defendant had used the victim's keys earlier that evening and no clear proof beyond his own testimony that he gave them back before he returned to her home.

The People also offered the testimony of a police officer who, in an experiment conducted the next day, used a credit card to open the door. However, there was no evidence that defendant knew how to "card" a door in this fashion, no witness testified that he had any credit cards with him on the night in question, [1263] and no cards were found on his person when he was arrested shortly thereafter. The results of a test of this nature are admissible only when the conditions under which it was conducted are sufficiently similar to make the result relevant (see Jerome Prince, Richardson on Evidence § 4-219 [Farrell 11th ed 1995]). Here, there was no "substantial similarity" (People v Cohen, 50 NY2d 908, 910 [1980]) and, given the speculative nature of this test, defendant's objection to the admission of this testimony should have been sustained (see People v Walker, 274 AD2d 600, 602 [2000]; compare People v Estrada, 109 AD2d 977, 978-979 [1985]). In view of the other evidence, however, we find that this error was harmless, and according deference to the jury's credibility determinations, we find no reason to disturb its verdict on the burglary charge (see People v Hargett, 11 AD3d at 814; People v Matuszek, 300 AD2d 1131, 1131-1132 [2002], lv denied 99 NY2d 630 [2003]; People v Webster, 290 AD2d 659, 659-660 [2002], lv denied 98 NY2d 641 [2002]; see also People v Ryan, 180 AD2d 769, 769 [1992], lv denied 79 NY2d 1054 [1992]).

Contrary to his claim, defendant received the effective assistance of counsel. Defendant's primary complaint addresses his counsel's failure to renew his trial motion to dismiss following the People's presentation of rebuttal testimony. However, "`[t]he constitutional right to the effective assistance of counsel does not mean that the representation was error free in every respect, but simply that defendant was afforded a fair trial'" (People v Jackson, 48 AD3d 891, 893 [2008], lv denied 10 NY3d 841 [2008], quoting People v Damphier, 13 AD3d 663, 664 [2004]). Defendant concedes that this single failure was not "sufficiently egregious and prejudicial" to deprive him of that right (People v Caban, 5 NY3d 143, 152 [2005]). Although he contends that other errors occurred, we find none rising to the level of ineffective assistance. Defendant's claim that his counsel should have made various objections is unsupported by any showing that these objections were meritorious or that counsel had no strategic reason for failing to make them (see People v Taylor, 1 NY3d 174, 177-178 [2003]), and counsel did make many successful objections in the course of the trial. Viewed as a whole, the record reveals that counsel also made appropriate pretrial motions, pursued a credible — though ultimately unsuccessful — theory of defense, conducted vigorous cross-examination of the People's witnesses, and otherwise provided defendant with meaningful representation (see People v Jordan, 99 AD3d 1109, 1110-1111 [2012], lv denied 20 NY3d 1012 [2013]; People v Bahr, 96 AD3d 1165, 1166-1167 [2012], lv denied 19 NY3d 1024 [2012]).

[1264] Defendant next objects to factual annotations on the verdict sheet, contending that he did not consent to them and that they were so prejudicial as to require reversal. As defendant argues, the inclusion of such notations without statutory authorization or his consent "offend[s] the letter of the law" (People v Washington, 9 AD3d 499, 500 [2004], lv denied 3 NY3d 682 [2004] [internal quotation marks and citation omitted]; see CPL 310.20 [2]), and the record reveals no express consent. However, "where a defendant is given adequate opportunity to review the verdict sheet and objects only to a portion of it, the failure to object to the remainder of the verdict sheet constitutes implicit consent to the remaining annotations" (People v Washington, 9 AD3d at 501; see People v Johnson, 96 AD3d 1586, 1587 [2012], lv denied 19 NY3d 1027 [2012]). Here, after reviewing the verdict sheet, defense counsel objected to an unspecified "typo" but did not mention the annotations, and did not object when County Court advised the jury that the attorneys had "approved" the verdict sheet. Accordingly, defendant's consent is implied.

Finally, defendant contends that his sentence is harsh and excessive. Given defendant's criminal history and his failure to take responsibility for his actions, we find no extraordinary circumstances or abuse of discretion warranting modification of the sentences, the aggregate of which are less than the maximum allowable for his convictions (see People v Hemingway, 85 AD3d 1299, 1303 [2011]; People v Lopez-Aguilar, 64 AD3d 1037, 1038 [2009], lv denied 13 NY3d 940 [2010]).

Ordered that the judgment is modified, on the facts, by reversing defendant's convictions for criminal sexual act in the first degree under counts 1 and 2 of the indictment; said counts dismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.

Jacob W. Heller and Eli Feit for appellant.

Robert M. Morgenthau, District Attorney (Robert M. Pitler and David H. Steiner of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur.

[642] GABRIELLI, J.

The present appeal arises out of nonjury trial of a dentist who stands convicted of sexually abusing two female patients while they were under the effects of sedation at defendant's office. A camera, which had been secreted in defendant's treatment room pursuant to a warrant, recorded one of the alleged incidents of sexual abuse. Several issues are raised on appeal, including the propriety of admitting into evidence a video tape of defendant's activities. In affirming defendant's conviction, we hold today that a warrant may issue to authorize the video taping of evidence to be admitted at a subsequent trial, provided certain procedures are followed and certain safeguards are observed.

The defendant, a dentist practicing in Manhattan, was convicted of two counts of sexual abuse in the first degree (Penal Law, § 130.65, subd 2) for allegedly subjecting two female patients to sexual contact while they were "incapable of consent by reason of being physically helpless". [643] The indictment upon which defendant was tried contained three counts of sexual abuse predicated upon the complaints of three of defendant's patients: Susan Hyman, Randi Carson and Dorothy Beineix. Each of the complainants alleged that they were subjected to physical contact of a sexual nature as they were recovering from the effects of sedation administered by defendant.

Susan Hyman first went to defendant's office to have a wisdom tooth extracted. After she expressed her fear that novocaine would not sufficiently deaden her pain, Dr. Teicher offered to use another method. Then, presumably to determine if she would suffer any adverse effects from the administration of a general sedative, he performed several tests on his patient and thereafter injected a fluid into her arm causing her to lose consciousness.

At trial Hyman testified that she awoke from her state of unconsciousness when she heard someone calling her name and felt something was touching her face. She opened her eyes and saw an exposed penis directly in front of her. Closing her eyes again, she reopened them to see a pair of trousers being zipped shut. Defendant then slapped her face, touched her blouse and lifted her from the dental chair. Hyman was still groggy and could not control her arms and legs. Defendant told her to "ventilate" her arms and he then drew her close to him and kissed her. While the patient was still unable to stand, defendant, while supporting her body, moved his hands over her breasts and thighs.

Several days following this encounter Ms. Hyman reported the incident to the police. The police equipped her with a hidden microphone before her next visit to the dentist, but when she questioned defendant about his prior activities he refused to admit that he had sexually assaulted her. He did, however, ask Ms. Hyman to join him at his hotel room. She refused his invitation, agreeing instead to meet with him at a nearby bar. On this next rendezvous Hyman was once more equipped with a recording device, but once again defendant made no admission of illegal conduct.

The police also received a complaint from Randi Carson, who had initially gone to defendant's office for an examination [644] and X rays and later returned for further treatment. As in Ms. Hyman's case, the defendant gave Ms. Carson a drug, which caused her to lose consciousness immediately. When she awakend she was assisted into a recovery room and, while she was resting there and still overcoming the effect of the drug which had been injected, defendant entered the room and closed the door behind him. No one else was present. Defendant at first tried to lift Carson to a standing position, but his efforts were unsuccessful. He then lifted her hand and placed it on his pants directly over his penis. Although she was still weak, Carson testified she was able to pull her hand away. Carson also testified that defendant kissed her during this encounter and made a remark which she understood as a request to perform an act of oral sex. In addition, according to Carson, he repeatedly asked her to meet with him at his hotel room. Later, upon arriving home, Carson noticed that her underwear was wet and that there was a soreness on the left side of her vagina which she had not felt before her visit to the doctor. That evening Carson brought her complaints to the police.

Carson later returned to defendant's office wearing a hidden microphone supplied by the police, but no further acts of sexual abuse were recorded or observed by the patient. After this visit defendant telephoned Carson several times at her home to ask her if he could visit with her. Finally, Ms. Carson again returned to defendant's office with a microphone. In response to her attempts to elicit admissions of sexual abuse from the dentist, however, defendant told her only that the drug he had injected had caused her to imagine the incident of which she later testified.

As a result of these complaints by Hyman and Carson and the unsuccessful efforts of the police to obtain additional incriminating evidence against the dentist, the District Attorney's office obtained a warrant authorizing the police to install a camera in defendant's office to monitor his treatment of patients who had consented to the taping. Pursuant to a prearranged plan, Police Officer Dorothy Beineix then went to defendant's office and made an appointment to [645] have a wisdom tooth extracted at a later date. On the morning of Officer Beineix' appointment, the police entered defendant's office and installed the camera in a ceiling ventilator in one of defendant's examining rooms. The camera, which was focused on the dentist's chair, was connected to a video recorder and was monitored by police officers who were waiting in the basement of the building.

Later that morning, Ms. Beineix returned to defendant's office to keep her appointment. Defendant first checked her pulse and blood pressure and then lifted her blouse to examine her chest with his stethescope. During this preliminary examination he instructed her that if she began to have difficulty breathing she should stand, lift her arms and breathe deeply. Following the examination, defendant administered a drug which caused Beineix to lose consciousness. While Beineix was unconscious defendant extracted her tooth and, at one point during this procedure, lifted her blouse and again examined her bare chest with his stethescope. During this entire period, defendant and Ms. Beineix were alone in the treatment room. As Ms. Beineix began to regain consciousness, defendant asked her to stand and put her arms around him. Since she had no control over her body at this time, Beineix told the doctor that she was unable to stand. Defendant then lifted her out of the dental chair and pulled her towards him. While sitting on a stool in front of the dental chair with Ms. Beineix between his legs, defendant lifted her blouse and began moving his hands across the upper part of her back and around toward her breasts. He then slid both hands down across her back and grabbed her buttocks. While massaging her buttocks in a circular motion he drew her body toward his. All of these actions were recorded on the video tape which was later admitted into evidence.

At this point the officers who were monitoring the video tape in the basement signaled other officers to arrest defendant. Detective Brech and Investigator Dadona were the first to enter the treatment room. Dadona testified at trial that when he first opened the door he observed that defendant's hands were on Ms. Beineix' sides, and that his thumbs were massaging the nipples of her breasts.

[646] At his subsequent trial defendant was convicted of two counts of sexual abuse in the first degree for the acts committed upon complainants Carson and Beineix. The count involving the complaint of Susan Hyman was dismissed, however, because the court found that defendant's guilt had not been established beyond a reasonable doubt. A divided Appellate Division affirmed defendant's conviction on both counts, and leave to appeal to this court was thereafter granted. Defendant now attacks the judgment of conviction on several grounds.

Defendant first contests his conviction on the count concerning the Carson incident on the ground that the evidence at trial was insufficient, as a matter of law, to establish his guilt. The statute under which defendant was convicted provides that a person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact "[w]hen the other person is incapable of consent by reason of being physically helpless" (Penal Law, § 130.65, subd 2). Sexual contact is defined in the Penal Law as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying the sexual desire of either party" (Penal Law, § 130.00, subd 3). Defendant claims that the evidence at trial was insufficient to establish that Ms. Carson was incapable of consenting to the touching and that there was no evidence to establish that this touching was for sexual gratification. Neither of these claims is supported by the record.

Carson was heavily sedated at the time the initial touching occurred and, as a consequence, she was in an extremely weakened condition. Thus, although she had enough control over her body to pull her hand away after defendant had placed it against his penis, the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition. Furthermore, we find defendant's contention that the touching was too fleeting to establish the element of sexual gratification to be frivolous. The statute does not require that actual gratification occur, but only that the touching be for that purpose. Defendant's act of placing his patient's hand [647] against his covered penis was more than sufficient to permit a trier of fact to find that the purpose of this act was sexual gratification.

Defendant also argues that even if the element of sexual gratification and the victim's incapacity were established, his act of placing Carson's hand against his genital area could not possibly constitute the crime of sexual abuse, since the statute proscribes only the act of a defendant who touches the intimate parts of his victim and not the act of a person who places his victim's hand against his own intimate parts. As we have held, this argument must be rejected because it requires an overly restrictive and improper reading of the statutory language (see People v Ditta, 52 N.Y.2d 657 [decided herewith]). The common-law policy that a penal provision should be strictly construed has been expressly abolished by the Legislature; instead penal statutes are to be interpreted "according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law, § 5.00) and are not to be given hypertechnical or strained interpretations (People v Ditta, supra, citing People v Sansanese, 17 N.Y.2d 302, 306; People v Wood, 8 N.Y.2d 48, 51).

Addressing the other count upon which defendant was convicted, that involving the sexual abuse of Dorothy Beineix, defendant once more challenges the sufficiency of the evidence, and also asserts that, for various reasons, the introduction into evidence of a video tape of his actions relating to the Beineix incident was improper. For reasons which follow we also uphold defendant's conviction under this count of the indictment.

The evidence upon which the People's case was built consisted primarily of the video tape of defendant's actions, the testimony of Inspector Dadona and Dorothy Beineix and, finally, the testimony of an expert witness who attempted to refute defendant's claim that his actions were medically necessary. The camera which recorded defendant's activities was positioned in such a way as to give a view overlooking the dental chair and a portion of the room. The relevant portion of the video tape revealed that after defendant had completed the extraction of Beineix' tooth, [648] he lifted his patient from the dental chair and placed her between his legs. At this moment defendant was sitting atop a stool and supporting Beineix in a standing position. It could readily be inferred from a viewing of the tape that the patient had no control over her body at this point. Defendant then lifted Beineix' blouse and moved his hands across her back. Although, because of the camera angle, it cannot be determined from the tape whether defendant actually placed his hands upon Ms. Beineix' breasts, the tape does reveal that he massaged her buttocks with both hands and pulled her toward his pelvic region. In addition to the video tape, the People also produced Inspector Dadona, who entered the treatment room at the signal of the officers monitoring the video tape and was therefore able to give eyewitness testimony of what transpired. He testified that when he first entered the office he observed defendant holding Beineix by her sides and massaging the nipples of her breasts with his thumbs. Although Beineix testified at trial that she could not recall if defendant had massaged her breasts, she was able to recall that he moved his hands across her body and down to her buttocks, causing her to become very frightened.

Defendant first contends that there was no proof that Beineix was incapable of consent by reason of being physically helpless. Noting that when he first told her to stand she responded that she was unable to do so, defendant argues that the crime of sexual abuse was not made out because there was no proof that Beineix could not communicate her unwillingness to submit to the subsequent touching. She did, however, testify that she had no control over her body, although she was mentally aware. As the People assert, simply because Beineix was unable to respond to defendant's direct command to stand does not prove, as a matter of law, that she was able to protest every subtle movement of his hand across her flaccid body. The People's medical expert testified at trial that when a patient is raised to a standing position, as in this case, there may be a decrease in the cerebral blood flow which could result in dizziness or even unconsciousness. In addition, the doctor testified that this effect is merely compounded by the application [649] of chest compression. The state of the victim's physical helplessness at any given moment is largely a question of fact which, in view of this and other testimony, we may not question upon this record. Furthermore, we reject the notion that the victim's status as a police decoy resulted in implicit consent to the physical touching because, as defendant claims, she voluntarily placed herself in a position to incur this abuse. Her consent to acting as a police decoy is not equivalent to a consent to a touching of her intimate parts, which she was physically incapable of giving at the time of the illegal activity.

Defendant also asserts that there was insufficient proof that any improper touching occurred because the tape was inconclusive on this point and, further, because the testimony of Inspector Dadona was not worthy of belief. The visual material on the tape, however, did not serve to disprove, on the contrary was consistent with, the conclusion that an unlawful touching occurred, even though the camera angle precluded an unobstructed view of all of defendant's activities. And, inasmuch as Inspector Dadona's testimony was not, as a matter of law, incredible, the trier of fact was entitled to consider his testimony as direct evidence that the described touching actually occurred.

Finally, defendant attacks the sufficiency of this evidence by asserting that the People have failed to prove, beyond a reasonable doubt, that the touching of Beineix was not performed pursuant to a valid medical procedure. Indeed, throughout the course of this litigation defendant's position has been that the actions which he took were part of a necessary medical treatment to bring Beineix out of a state of respiratory distress through the application of pressure on her ribcage. In support of these assertions defendant produced two experts at trial who indicated that the actions depicted on the tape could be a form of resuscitory technique. Interestingly, they also indicated, however, that this technique was neither taught nor recommended, that it was unknown to them and, in fact, would probably be employed only by a minimally trained practitioner. Moreover, the People produced an expert witness who testified in substance that the tape reveals that Beineix was not in need [650] of respiratory assistance and that, even if she were, the method of resuscitation employed by defendant would in fact be detrimental to his patient rather than helpful. In light of this evidence the trier of fact had more than ample basis for rejecting defendant's contention that his actions were dictated by any claimed medical necessity.

Defendant's next assertions go not to the sufficiency of the evidence at trial, but to the propriety of permitting the video tape of his activities involving Ms. Beineix to be introduced into evidence. This matter presents questions of first impression before this court.

Defendant's initial contention is that Supreme Court had no power to issue a warrant authorizing the type of surveillance which took place in this case. There is, of course, no doubt that the Supreme Court had the power to authorize the aural recording of the events in defendant's office. The authority of a court to permit aural electronic surveillance is derived from CPL article 700. This article deals with the use of eavesdropping warrants, and defines eavesdropping as wiretapping or mechanical overhearing of a conversation (CPL 700.05, subd 1). Defendant, however, argues that article 700, by its express terms, may not be read as conferring on the courts the power to authorize video electronic surveillance.

Initially, we note our agreement with defendant's contention that CPL article 700 does not apply to video surveillance.^[1] This article applies only to eavesdropping, which is defined as wiretapping or mechanical overhearing of a [651] conversation (CPL 700.05, subd 1). The statutory language is directed toward the aural acquisition of information, and does not mention the acquisition of visual images.

Nevertheless, we believe that the warrant which permitted video surveillance in this case was valid, since it was authorized by the provisions of CPL article 690. CPL 690.10 (subd 4) provides that "[p]ersonal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it * * * [c]onstitutes evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense". Defendant maintains that this statute authorizes only the seizure of tangible property and does not permit the seizure of an intangible visual image secured by a video recording. We reject this interpretation.

In People v Abruzzi (52 AD2d 499, affd on opn below 42 N.Y.2d 813, cert den 434 US 921), the court reversed the conviction of a doctor who had been convicted for certain acts of sexual misconduct largely upon the testimony of a police officer who had observed defendant's actions while perched on a ladder outside the doctor's window. The Abruzzi court held that the defendant's motion to suppress this evidence should have been granted because it was procured without the authorization of a warrant. Implicit in this holding is the premise that a proper warrant may issue to permit the seizure that results from obtaining visual observations of a crime in progress in a private place. Similarly, in United States v New York Tel. Co. (434 US 159), the Supreme Court had occasion to determine if rule 41 of the Federal Rules of Criminal Procedure, which closely parallels the language of CPL 690.10 (subd 4), authorizes the issuance of a warrant to seize intangible evidence. One of the issues in that case was whether a Federal District Court could issue a warrant authorizing the use of a pen register.^[2] The court determined that rule 41 is sufficiently [652] broad to include seizures of intangible items such as dial impulses recorded by these devices, and also noted that in Katz v United States (389 US 347) the court had held that rule 41 was sufficiently flexible to include the power to authorize the seizure of conversations. We believe that the similarity in the wording of rule 41 and CPL article 690 is sufficient to permit analogy. Accordingly, we conclude that the court in the instant case was authorized under CPL article 690 to issue a warrant for the seizure of intangible visual images in defendant's office.

Defendant also contends that even if such a warrant is authorized under the CPL, the warrant in this case must nevertheless fall because it did not comply with the provision of title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (US Code, tit 18, §§ 2510-2520). This is based upon the assumptions that title III applies to the area of visual electronic surveillance and that this provision pre-empts State law. Although we have previously held that title III does indeed pre-empt State law in the area of electronic surveillance (People v Shapiro, 50 N.Y.2d 747), this fact is unavailing in the present case, since title III does not apply to the field of video electronic surveillance and indeed, does not prohibit the type of surveillance here employed.^[3]

Title III, also often referred to as the Federal wiretapping statute, prescribes the procedure for securing judicial authority to intercept wire or oral communications in the investigation of specified serious offenses. Similar to the [653] provision of CPL article 700, which was drafted to conform to the provisions of the Federal act (see Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL art 700, p 243), title III deals only in the aural acquisition of the contents of any wire or oral communication. As the language and legislative history of that statute makes clear, it was never intended to address the use of video surveillance equipment (see Carr, Electronic Surveillance, § 3.08, p 124; Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2178).^[4]

Defendant makes one final argument concerning the video tape evidence which deserves attention. He maintains that the use of visual surveillance is so intrusive that any act of this nature should be deemed unreasonable per se under the Fourth Amendment. While we agree with defendant's concern over the high degree of intrusiveness that is inherent in this form of surveillance, we cannot agree that such activities are per se unreasonable and must be prohibited under all circumstances. Certainly the Orwellian overtones involved in this activity demand that close scrutiny be given to any application for a warrant permitting video electronic surveillance. Nevertheless, the Fourth Amendment does not mandate an absolute ban on video surveillance any more than it mandates a total proscription on electronic eavesdropping. Indeed, there may be situations such as the present one where the intrusion resulting from such surveillance is warranted because of the State's high interest in gathering evidence of criminality and its inability to achieve this goal through less intrusive means.

Although there are at present no significant statutory limitations in the field of video electronic surveillance, we are not completely without guidance in this area. In Berger v New York (388 US 41) and Katz v United States (389 US 347, supra), both of which predated the advent of title III in the area of electronic eavesdropping, the Supreme [654] Court set forth the minimum constitutional standards governing the use of aural electronic surveillance. Because of the substantial similarities between this form of surveillance and the video electronic surveillance which took place in this case, we believe that the standards announced in Berger and Katz are applicable with equal force to the present situation. And, contrary to defendant's assertions, we believe that these constitutional standards were here satisfied.

The first requirement for a warrant authorizing video electronic surveillance, as with any warrant, is that there be a showing of probable cause. In situations involving this form of search, there must be probable cause to believe that a particularly described person is committing, has committed, or is about to commit a crime, probable cause to believe that the place where the activity is to be intercepted is being used or is about to be used in connection with the commission of the crime by that described person, and also probable cause to believe that a particular activity related to that crime will be observed through the use of video electronic surveillance (see Berger v New York, supra; cf. CPL 700.15, subds 2, 3, 5). Such probable cause was clearly established by the affidavit offered by the District Attorney in support of his application for a warrant, which fully set forth the facts leading up to the Beineix incident.

The Constitution also requires particularization in the warrant. Specifically, the Fourth Amendment commands that the warrant must particularly describe "the place to be searched, and the * * * things to be seized". In the area of video electronic surveillance, as in the area of electronic eavesdropping, the particularization requirement includes specification of the crime under investigation, specification of the type of activity sought to be captured by the camera and also specification of the person expected to be seen performing the activity. The obvious purpose of this requirement is to limit the discretion of the officers in executing the search. Here, all of these requirements were satisfied. Although the warrant did not specify the particular room in which the camera was to be placed, the affidavit, which was incorporated in the warrant, did specify that the camera [655] was to be placed in defendant's dental office and was to focus upon the dental chair in which consenting patients would be seated. While defendant apparently had two treatment rooms, we nevertheless conclude that the limitation upon the place to be searched was sufficiently specific to obviate the danger of a general rummaging for evidence or a search of impermissibly broad scope (see Coolidge v New Hampshire, 403 US 443).

Minimization is also necessary for a warrant authorizing video electronic surveillance. In Berger, the court expressed concern that conversations of persons coming into an area covered by an eavesdropping device might be unnecessarily and indiscriminately seized without regard to their connection with the crime under investigation. This concern is equally compelling when visual surveillance is employed. The warrant in this case explicitly provided, however, that the surveillance be conducted in such a way as "to minimize the recording of activities not related to the [specified] crimes". Moreover, the incorporated affidavit expressly limited the view of the camera to the dental chair in defendant's office and specified that the device would be turned on only when consenting females were in the treatment room. These limitations were sufficient to ensure that the surveillance would be confined to the observation of the activities for which the warrant was issued.

Finally, before a warrant authorizing unconsented video electronic surveillance may issue, it must be established that there are no less intrusive means for obtaining the needed evidence. Since electronic surveillance of any kind is necessarily surreptitious and constitutes an extensive invasion of the individual's privacy, it may only be permitted where normal investigative procedures had been tried and had failed or are demonstrably unlikely to succeed. Defendant contends that such a showing could not be made in this case, but the facts do not bear out his contention. Before applying for the warrant the police had questioned defendant about one of the complaints of sexual abuse, had equipped two of the female complainants with hidden recorders and transmitters in an attempt to elicit admissions from defendant, and had tapped the telephone of a complainant who [656] had received repeated calls from defendant. Furthermore, the use of a police decoy without the protection of visual surveillance would not have produced the needed evidence in this case, since the decoy, of necessity, would have been heavily sedated and might not have been able to relate what transpired. Under these circumstances it cannot be said, despite defendant's protestations to the contrary, that the police failed to make a sufficient showing of necessity before obtaining the warrant.

As we have stressed, the constitutional requirements outlined for eavesdropping in Berger v New York (388 US 41, supra), and Katz v United States (389 US 347, supra) are equally applicable to the area of video electronic surveillance. While we have discussed several of these requirements in the instant case, our opinion should not be construed as an inventory of each of the necessary elements for such a warrant. The degree of intrusiveness inherent in video electronic surveillance demands unswerving adherence to each of the limitations placed upon the use of this device. Moreover, because the use of this investigative technique poses a threat to the privacy of citizens, legislative scrutiny of the field and the enactment of specific guidelines would appear to be in order.

We have considered defendant's remaining contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] The police obtained the aural portions of the video tape by planting a microphone in Beineix' purse, which she carried into the treatment room. In general, if one of the parties to an intercepted conversation consents to the recording or mechanical overhearing of that conversation, the provisions of CPL article 700 do not apply (see CPL 700.05, subd 1; Penal Law, § 250.00; see, also, United States v White, 401 US 745). Although the fact that Beineix was unconscious during her dental treatment might have some bearing on an analysis under United States v White, we have no need to consider the question since defendant does not separately contest the aural portion of the tape, perhaps because it contains little of an inculpatory nature. Additionally, we note, without deciding, that if a consenting party carries a camera on her person, the seizure which occurs might not be subject to the warrant requirement (cf. United States v White, supra). This issue is not before us, however, because the camera used in this case was planted in defendant's office pursuant to a court-authorized entry of the building.

[2] The Supreme Court described a pen register as "a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed" (United States v New York Tel. Co., 434 US 159, 161, n 1, supra).

[3] Title III specifies that an eavesdropping warrant may issue only for certain specified crimes, namely "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing * * * interception, or any conspiracy to commit any of the foregoing offenses." (US Code, tit 18, § 2516, subd [2]). In People v Shapiro (supra) we held that allegations of prostitution and sexual abuse predicated upon the inability of the victim to consent by reason of age did not fall within this list of enumerated crimes. On the basis of our holding in Shapiro, defendant argues that the Federal act also precludes electronic surveillance in cases involving only the crime of sexual abuse committed against a victim who is incapable of consent by reason of physical helplessness.

[4] Specifically, the Senate report provides as follows: "Paragraph (4) defines `intercept' to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation".

Michael Torres for defendant. Paul Gentile, District Attorney (Pamela Naughton of counsel), for plaintiff.

GERALD SHEINDLIN, J.

The defendant is on trial before a jury.

At the conclusion of the People's case the defendant moves for a trial order of dismissal of a three-count indictment, in particular, the second count, which accuses the defendant of [201] the crime of rape in the first degree (Penal Law § 130.35 [2]), in that he did engage in sexual intercourse with the complainant, a female who was incapable of consent by reason of being physically helpless.

The court must evaluate whether as a matter of law the People have failed to present evidence which is legally sufficient to establish the offense charged. (See, CPL 290.10.)

The evidence presented at trial, which is accepted as true for purposes of this motion, indicates that the complainant suffers from muscular dystrophy rendering her paralyzed from the neck down and wheelchair bound. On the evening of June 20, 1987 the defendant entered the complainant's apartment while she was alone, removed her from her wheelchair and carried her to the bedroom where he placed her on the bed and proceeded to rape her. During the course of the incident the victim verbally protested and expressed her fear and outrage. She told the defendant to cease his actions and attempted to physically resist but was unable to do so because of her total paralysis. The defendant left the victim in her bed, where she was compelled to remain until her husband returned home, some six hours later.

Defendant was indicted for the crimes of rape in the first degree (Penal Law § 130.35 [1] [forcible compulsion]) and rape in the first degree (Penal Law § 130.35 [2] [physically helpless]) and other crimes.

The issue to be resolved is whether the complainant's total physical helplessness due to muscular dystrophy renders her "incapable of consent by reason of being physically helpless". (Penal Law § 130.35 [2].)

"`Physically helpless'" is defined as follows: it "means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act." (Penal Law § 130.00 [7].)

The Donnino Practice Commentaries (McKinney's Cons Laws of NY, Book 39, Penal Law art 130, at 573) note that, "this definition would apply to a person who is in a deep sleep as a result of barbituates or who is a total paralytic. To some extent, the definitions of mentally incapacitated and physically helpless overlap."

"`Mentally incapacitated' means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act [202] committed upon him without his consent." (Penal Law § 130.00 [6].)

As noted in the Practice Commentaries, these two forms of incapacity, "physically helpless" and "mentally incapacitated", are applicable to victims "who have no mental disease or defect but who are temporarily, for a variety of reasons, not able to make a rational, free-will determination to consent, or not able to communicate an unwillingness to consent, to sexual activity". (Donnino, Practice Commentaries, op. cit., at 572-573.)

It is apparent that the "physical helplessness" contemplated by the statute requires more than a disease causing physical paralysis.

A fair reading of the statute indicates the requirement of a mental state that limits or prohibits the victim from communicating a lack of consent to the conduct of the perpetrator.

In People v Teicher (52 N.Y.2d 638), it was noted that several victims were drugged by the defendant, a dentist. When asked to stand, they responded that they were unable to do so. It was clear that the victims had no control over their bodies yet this fact did not resolve the question of whether they were "physically helpless" for purposes of the statute.

The fact that at a certain point some victims were unable to verbally communicate with the defendant raised a question of fact as to whether those victims were "physically helpless" during the entire incident, which was resolved by the Judge's verdict against the defendant.

In the instant matter the victim is physically unable to stand or move her arms or legs. However, at trial, she clearly testified that she verbally communicated her lack of consent and protests to the defendant during the incident. Therefore, although she was indeed physically helpless in the ordinary sense of the term, she was not physically helpless for purposes of the statute. Unfortunately, the statute is mislabeled.

Accordingly, the defendant's motion for a trial order of dismissal of the second count of the indictment, on the grounds that the People have failed to establish a prima facie case, is granted.

The defendant's motion for a trial order of dismissal of counts one and three of the indictment is denied.