Defendant appeals from the judgment of the Supreme Court, New York County (Bonnie Wittner, J.), rendered April 22, 2009, as amended April 30, 2009, convicting him, after a jury trial, of rape in the second degree and facilitating a sex offense with a controlled substance, and imposing sentence.
Steven Banks, The Legal Aid Society, New York (David Crow of counsel), Quinn Emanuel Urquhart & Sullivan LLP, New York (Robert Trisotto of counsel), and Cahill Gordon & Reindell LLP, New York (Will A. Page and Daniel C. Isaacs of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee and Susan Gliner of counsel), for respondent.
Richard T. Andrias, J.P., David B. Saxe, Karla Moskowitz, Sallie Manzanet-Daniels, JJ.
Defendant's conviction of rape in the second degree and facilitating a sex offense with a controlled substance was not only supported by legally sufficient evidence, but the weight of the evidence was overwhelming, and the trial court's Molineux ruling does not justify reversal.
The charge of rape in the second degree (Penal Law § 130.30) is based on defendant's having had sexual intercourse with the complainant while she was mentally incapacitated due to narcotic or intoxicating substances administered to her without her consent, and the charge of facilitating a sex offense with a controlled substance (Penal Law § 130.90) is based specifically on defendant's administering MDMA (methylenedioxymethamphetamine), commonly called Ecstasy, to the complainant without her knowledge or consent in order to facilitate the subsequent sex offense.
The trial evidence offered by the People included the testimony of the complainant and two other young women present for some of the events, along with the testimony of a police detective, a physician, and an expert toxicologist, as well as the results of forensic testing and recordings of statements made by defendant. The complainant testified that she met defendant, who identified himself as a Los Angeles-based talent agent, at a "Talent Expo" in Texas in November 2006, when she was a high school senior, and that thereafter defendant called her numerous times about her plans for a career in entertainment. He repeatedly encouraged her to move to Los Angeles, where he said he would pitch her demo tape to a record label and introduce her to influential people in the entertainment industry. But, rather than move to Los Angeles after graduating from high school, in the fall of 2007, the complainant enrolled at the New York Conservatory of Dramatic Arts. On September 3, 2007, defendant called her and proposed that she meet with him while he was in Manhattan on September 11, 2007, suggesting that they go to a restaurant called Tao.
At about 5:00 p.m. the complainant arrived at the address defendant had given her, and he escorted her from her taxicab into his hotel room. There, she accepted defendant's offer of a drink. He prepared two blue-colored alcoholic drinks called "Hpnotiq, " and served her one, which she drank. After the two read some scenes together, at defendant's suggestion they went to a clothing store near the hotel, where defendant suggested to the complainant that she choose clothing that would show her style. At approximately 7:30 p.m. defendant bought the complainant a dress of her choosing to wear for the evening.
They then walked back to defendant's hotel room, which took no more than 10 minutes, and upon arriving at the hotel room, defendant provided the complainant with a glass of wine, which she drank between approximately 7:40 and 8:15 p.m. The two then left the hotel to go to Tao. The complainant testified that in the taxi on the way to the restaurant, she felt "a little bit light-headed, " "a lot more relaxed, " and "happy" from the drinks she had consumed.
At the restaurant, defendant ordered the complainant a drink from the bar. She testified that before drinking it, she noticed that her vision had become "slightly fuzzy, " an effect she had not previously experienced as a result of drinking alcohol. She drank that drink between 8:15 and 8:30 p.m., although she could not recall how many sips she had. A short time later, the pair was joined by two young women who, it turned out, were classmates of the complainant at the Conservatory. Defendant ordered another round of drinks for all four of them while they waited to be seated at a table. According to the two young women, the complainant was behaving in an unusually "touchy-feely" manner with defendant, and while one of them testified that she did not seem to be drunk at this point, the other testified that she seemed intoxicated in that she was very talkative and very "loose." Defendant and the three women were soon seated for dinner at a table on the second floor of the restaurant.
It is at this point that the complainant's memory of the evening's events stops; she testified that she could not remember anything that happened from that point until she woke up in defendant's hotel room the next morning. However, the testimony of her two classmates described the complainant's conduct through much of the rest of that evening.
Defendant ordered another round of drinks after the group was seated at their table; during dinner, the complainant consumed three or four drinks. In the view of both young women, the complainant's conduct grew more unusual: she seemed "a lot less stable, " was "rocking back and forth, " "kept reaching out for" her friend's arm, and "kept on repeating her words" to the point where she "had the same conversation over and over again." She was "swaying back and forth, " was "leaning all over [defendant]" and "rubbing his thighs and knees, " and appeared to be "beyond just being intoxicated."
The group left the restaurant around 10:45 p.m. and took a limousine to a club called Marquee. In the limousine, the complainant seemed to be "in her own fantasy world, " acting in a "very sensual" manner — singing to herself with her eyes closed, rocking back and forth, and rubbing her body, including her upper thighs, in an unusual way. Inside the club, she consumed more drinks, although she was stumbling and unstable, and was not making sense. She danced with a friend of defendant's named Theo, who met the group at the club at approximately 11:30 p.m. Theo testified that he saw the complainant finish three drinks at the club.
The other two young women left Marquee at about 12:30 a.m. Defendant left the club with the complainant some time later, while Theo remained there. Video surveillance footage from the Parker Meridien Hotel showed that defendant and the complainant arrived back at the hotel shortly after ...