        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1407
KA 09-01858
PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMISON ADSIT, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered August 14, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal sexual act in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of criminal sexual act in the second degree (Penal Law §
130.45 [2]), defendant contends that the evidence is legally
insufficient to support the conviction. We reject that contention.
Specifically, defendant contends that the evidence is legally
insufficient with respect to the issue whether the victim “is
incapable of consent by reason of being mentally disabled” (id.),
which “means that [she] suffers from a mental disease or defect which
renders . . . her incapable of appraising the nature of . . . her
conduct” (§ 130.00 [5]). “An ability to ‘appraise’ is, of course, a
qualitative matter, all the more so when the appraisal is one to be
made of the ‘nature’ of ‘conduct[,’] with the variety of factors that
the one ‘appraising’ may have to take into account for such purposes.
Cognitive understanding is involved. In a case such as the one before
us, it includes [the victim] being substantially able to understand
what she was doing” (People v Easley, 42 NY2d 50, 56).

     Here, the People presented the testimony of a paramedic,
physician’s assistant, nurse, nursing assistant, and psychiatrist
establishing that the victim had suffered a seizure and was incoherent
both upon her admission to the hospital and the next day, when the
incident giving rise to the charge occurred. The psychiatrist, who
reviewed the victim’s medical records and examined her, opined that
she was suffering from a mental defect that rendered her incapable of
                                 -2-                          1407
                                                         KA 09-01858

appraising the nature of sexual activity. The defense presented the
testimony of an expert witness who conducted a forensic evaluation of
the medical, police and ambulance records and opined that the records
were inconclusive with respect to the victim’s ability to appraise the
nature of her sexual conduct. Viewing the evidence in the light most
favorable to the prosecution, as we must (see People v Contes, 60 NY2d
620, 621), we conclude that the evidence is legally sufficient to
establish that the victim lacked the mental capacity to appraise the
nature of her sexual conduct and thus was unable to consent to
defendant’s actions (see People v Dixon, 66 AD2d 971, 972; see
generally People v Cratsley, 86 NY2d 81, 86-88; Easley, 42 NY2d at 55-
57). Furthermore, viewing the evidence in light of the elements of
the crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).

      Finally, we reject defendant’s contention that he was denied the
right to effective assistance of counsel. The record establishes that
defense counsel made a clear and cogent opening statement directed at
the People’s inability to prove that the victim was incapable of
appraising the nature of her conduct, conducted meaningful cross-
examination, lodged objections consistent with the defense theory,
presented the testimony of an expert who highlighted inconsistencies
in the victim’s medical records with respect to her coherency and
awareness, and obtained an acquittal on the top count of the
indictment. Defense counsel’s isolated comments on the paucity of DNA
evidence were not tantamount to the assertion of an inconsistent
defense that no oral sexual conduct occurred. Viewing the evidence,
the law and the circumstances of this case, in totality and as of the
time of the representation, we conclude that defendant received
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
