Timothy P, Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
The order of the Appellate Division should be affirmed.
Following a jury trial, defendant was convicted of, among other crimes, rape in the first degree (Penal Law § 130.35 ) and burglary in the first degree (Penal Law § 140.30 ), arising from an incident that occurred on March 10, 2007. On that date, the victim returned home from a night out, charged her cell phone, and fell asleep on her couch. Three hours later, she was awoken by someone saying " shhhh" in her ear. The victim sat up and observed a man— later identified as defendant— lying on the couch beside her. The victim smelled alcohol on his breath. She screamed at him to leave. Defendant began choking her and a struggle ensued. They fell to the floor and defendant
raped her. He then threw a blanket [999 N.E.2d 536] [977 N.Y.S.2d 173] over the victim's head and fled. The victim looked for her cell phone so she could call the police, but it was missing.
The victim then ran to her parents' house and her mother called the police. An officer responding to the victim's apartment observed two vertical cuts in the porch screen approximately eight inches apart, along with " smudges" consistent with someone having placed their hands against the window. The victim underwent a sexual assault examination later that morning.
Ten days later, an investigator, while questioning defendant about an earlier home invasion that had occurred on the same street, asked defendant about the rape. The investigator eventually obtained a warrant to search defendant's apartment, and recovered from a drop-ceiling tile in defendant's bedroom a cell phone that the victim identified as hers.
After having been shown the cell phone, defendant gave investigators a written, signed statement. In the statement, he claimed that
" [f]or the last two years, I've realized that I have a problem with alcohol. If I drink too much, I am taken over by a spirit that takes control of my body and my thoughts. It's something that I can't control. It only happens when I drink alcohol. I don't remember the exact night, but one night earlier this month I was out drinking all over. I remember going to Lux bar on South Avenue and other places. I got drunk. The next thing I remember is knocking on the front window of the house across the street from my house."
Defendant did not admit to raping the victim, but, instead, stated that he entered the house through a window and fell asleep on the couch, only to be awoken by a woman screaming at him, prompting him to flee. That morning, he found a cell phone in his clothing but could not remember how he had come to possess it, and he hid it in the ceiling.
The trial court denied defendant's request for an
intoxication charge. The jury convicted defendant as charged. The Appellate
Division affirmed, holding, as relevant to this appeal, that because the
only record evidence of defendant's intoxication was his self-serving
statements and the victim's testimony that she smelled alcohol on ...