PEOPLE v. CHODAKOWSKI (2018)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered November 29, 2016, convicting defendant, after a jury trial, of rape in the first degree and sexual abuse in the first degree, and sentencing him to concurrent terms of 5 years, unanimously affirmed.

The People met their burden of establishing defendant's guilt of first-degree rape and first-degree sexual abuse by proving beyond a reasonable doubt that defendant subjected the victim to sexual intercourse while she was unable to consent due to being physically helpless, since she was asleep when the intercourse started.  Although it is undisputed that defendant had been drinking heavily that night, defendant failed to meet his burden of establishing by a preponderance of the evidence (Penal Law § 25.00[2] ) that he did not know that the victim was asleep while having had sexual intercourse with her (Penal Law § 130.10[1] ).

Defendant's CPL 330.30(2) claims are unpreserved based upon his failure to file the appropriate motion in Supreme Court for the relief he seeks here.  In fact, prior to sentencing, defense counsel never specifically requested a new trial or hearing on the grounds now raised on appeal.

We perceive no basis for reducing the sentence.