Malone Jr., J.
Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered December 19, 2006, upon a verdict convicting defendant of the crimes of rape in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the fourth degree, criminal sexual act in the first degree, unlawfully dealing with a minor (two counts), burglary in the second degree, criminal mischief in the third degree (two counts) and criminal mischief in the fourth degree (two counts).
Following a jury trial, defendant was convicted of rape in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the fourth degree, criminal sexual act in the first degree, two counts of unlawfully dealing with a minor, burglary in the second degree, two counts of criminal mischief in the third degree and two counts of criminal mischief in the fourth degree, and he was sentenced to an aggregate prison term of 58 to 64 years. The convictions on the sex offenses and unlawfully dealing with a minor stemmed from three incidents that occurred during February and March 2006, which involved the 17-year-old girlfriend of defendant’s cousin. The remaining convictions stemmed from several acts of vandalism that occurred at the residence of Joan Osborne, defendant’s former mother-in-law, between March and May 2006, during which time defendant’s former wife, Barbara Chapman, and their three children were living there.
On appeal, defendant first argues that the convictions of rape in the first degree, criminal sexual act in the first degree and aggravated sexual abuse in the fourth degree are not supported by legally sufficient evidence. Although this issue was not properly preserved at trial since defense counsel made only a general motion to dismiss (see People v Finger, 95 NY2d 894, 895 [2000]), upon our examination of this record, we conclude that defendant’s arguments have merit and we reverse his convictions on those counts as a matter of discretion in the interest of justice (see CPL 470.15 [3]).
Defendant was charged with rape in the first degree pursuant to Penal Law § 130.35 (1) and criminal sexual act in the first degree pursuant to Penal Law § 130.50 (1). Specifically, the indictment alleged that defendant engaged in sexual intercourse with the victim by forcible compulsion and that he engaged in oral sexual conduct with the victim by forcibly placing his mouth on her vagina. As is relevant here, forcible compulsion is established by proof of actual physical force or by proof of a threat, either express or implied, that causes a person to fear “immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8] [b]).
[509] The victim’s testimony here did not establish that defendant used actual physical force during the alleged incident. She testified on direct examination that she was lying down in defendant’s bed when he began to “touch[ ] [her] over or under [her] clothes.” According to the victim, she initially ignored defendant, but eventually performed consensual oral sex on him in the hope that he would leave her alone. However, defendant then said that he wanted to perform oral sex on her. The victim testified that defendant did so despite her verbal protest. On cross-examination, the victim added that, after defendant performed oral sex on her, he inserted his penis into her vagina without her consent. Although this testimony was sufficient to establish that the sexual conduct occurred without the victim’s consent, it did not establish that defendant used physical force.
Nor was there evidence that the sexual contact was compelled by threat or fear. Defendant’s statement to the victim to “put out or get out,” by which defendant apparently meant that the victim had to leave his residence if she did not comply with his demands, was not made at the time of the incident in question and, in any event, does not constitute a threat that would cause the victim to fear immediate death or injury. Indeed, the victim admitted that, after defendant made that statement, she actually left the residence three or four times but willingly returned. Likewise, although the victim testified that defendant could be “mean” and “loud” and had a bad temper when he drank alcohol, she stated that, on those occasions, she would “just sit[ ] there listening to him” and that “[h]e wouldn’t actually say too much but he would like to complain about everything.” Again, this testimony is insufficient to establish that defendant used the threat of imminent death or injury to compel the victim to engage in sexual conduct with him. Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that the evidence presented was legally insufficient to support the convictions of rape in the first degree and criminal sexual act in the first degree as charged in counts one and four of the indictment (see People v Fuller, 50 AD3d 1171, 1175 [2008]; compare People v Val, 38 AD3d 928, 929 [2007], Iv denied 9 NY3d 852 [2007]; People v Black, 304 AD2d 905, 906-908 [2003], Iv denied 100 NY2d 578 [2003]).
With regard to defendant’s conviction of aggravated sexual abuse in the fourth degree (see Penal Law § 130.65-a [1] [a]), the People’s theory was that defendant inserted a vibrator into the victim’s vagina at a time when she was physically helpless, and thus unable to consent, as a result of intoxication. A person [510] is considered to be physically helpless when he or she “is unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penad Law § 130.00 [7]). According to the victim, she became intoxicated, eventually vomited and somehow “ended up back in [defendant’s] room,” where she again performed consensual oral sex on him. He then inserted the vibrator into her vagina, which she did not initially protest. The victim testified that she eventually told defendant to stop, but that he did not do so. Although this testimony was sufficient to establish that the sexual conduct was not consensual and occurred at a time when the victim was intoxicated, it also established that the victim was conscious at the time of the incident and was able to—and, in fact, did—communicate to defendant her unwillingness. Accordingly, the evidence was also legally insufficient to support the conviction of aggravated sexual abuse in the fourth degree under count six of the indictment (see People v Conto, 218 AD2d 665, 666 [1995], Iv denied 87 NY2d 845 [1995]; compare People v Fuller, 50 AD3d at 1174 [the victim became intoxicated, “passed out” and awoke to find the defendant with his finger in her vagina]; People v Sensourichanh, 290 AD2d 886, 886-887 [2002] [after drinking alcohol and smoking marihuana, the victim fell asleep and later awoke to the pain of someone having sexual intercourse with her]; People v Himmel, 252 AD2d 273, 275 [1999], Iv denied 93 NY2d 899 [1999] [the victim was aware that the defendant was sodomizing him, but he was so intoxicated that he was unable to speak]).
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Malone Jr., J.
Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered December 19, 2006, upon a verdict convicting defendant of the crimes of rape in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the fourth degree, criminal sexual act in the first degree, unlawfully dealing with a minor (two counts), burglary in the second degree, criminal mischief in the third degree (two counts) and criminal mischief in the fourth degree (two counts).
Following a jury trial, defendant was convicted of rape in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the fourth degree, criminal sexual act in the first degree, two counts of unlawfully dealing with a minor, burglary in the second degree, two counts of criminal mischief in the third degree and two counts of criminal mischief in the fourth degree, and he was sentenced to an aggregate prison term of 58 to 64 years. The convictions on the sex offenses and unlawfully dealing with a minor stemmed from three incidents that occurred during February and March 2006, which involved the 17-year-old girlfriend of defendant’s cousin. The remaining convictions stemmed from several acts of vandalism that occurred at the residence of Joan Osborne, defendant’s former mother-in-law, between March and May 2006, during which time defendant’s former wife, Barbara Chapman, and their three children were living there.
On appeal, defendant first argues that the convictions of rape in the first degree, criminal sexual act in the first degree and aggravated sexual abuse in the fourth degree are not supported by legally sufficient evidence. Although this issue was not properly preserved at trial since defense counsel made only a general motion to dismiss (see People v Finger, 95 NY2d 894, 895 [2000]), upon our examination of this record, we conclude that defendant’s arguments have merit and we reverse his convictions on those counts as a matter of discretion in the interest of justice (see CPL 470.15 [3]).
Defendant was charged with rape in the first degree pursuant to Penal Law § 130.35 (1) and criminal sexual act in the first degree pursuant to Penal Law § 130.50 (1). Specifically, the indictment alleged that defendant engaged in sexual intercourse with the victim by forcible compulsion and that he engaged in oral sexual conduct with the victim by forcibly placing his mouth on her vagina. As is relevant here, forcible compulsion is established by proof of actual physical force or by proof of a threat, either express or implied, that causes a person to fear “immediate death or physical injury to himself, herself or another person” (Penal Law § 130.00 [8] [b]).
[509] The victim’s testimony here did not establish that defendant used actual physical force during the alleged incident. She testified on direct examination that she was lying down in defendant’s bed when he began to “touch[ ] [her] over or under [her] clothes.” According to the victim, she initially ignored defendant, but eventually performed consensual oral sex on him in the hope that he would leave her alone. However, defendant then said that he wanted to perform oral sex on her. The victim testified that defendant did so despite her verbal protest. On cross-examination, the victim added that, after defendant performed oral sex on her, he inserted his penis into her vagina without her consent. Although this testimony was sufficient to establish that the sexual conduct occurred without the victim’s consent, it did not establish that defendant used physical force.
Nor was there evidence that the sexual contact was compelled by threat or fear. Defendant’s statement to the victim to “put out or get out,” by which defendant apparently meant that the victim had to leave his residence if she did not comply with his demands, was not made at the time of the incident in question and, in any event, does not constitute a threat that would cause the victim to fear immediate death or injury. Indeed, the victim admitted that, after defendant made that statement, she actually left the residence three or four times but willingly returned. Likewise, although the victim testified that defendant could be “mean” and “loud” and had a bad temper when he drank alcohol, she stated that, on those occasions, she would “just sit[ ] there listening to him” and that “[h]e wouldn’t actually say too much but he would like to complain about everything.” Again, this testimony is insufficient to establish that defendant used the threat of imminent death or injury to compel the victim to engage in sexual conduct with him. Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that the evidence presented was legally insufficient to support the convictions of rape in the first degree and criminal sexual act in the first degree as charged in counts one and four of the indictment (see People v Fuller, 50 AD3d 1171, 1175 [2008]; compare People v Val, 38 AD3d 928, 929 [2007], Iv denied 9 NY3d 852 [2007]; People v Black, 304 AD2d 905, 906-908 [2003], Iv denied 100 NY2d 578 [2003]).
With regard to defendant’s conviction of aggravated sexual abuse in the fourth degree (see Penal Law § 130.65-a [1] [a]), the People’s theory was that defendant inserted a vibrator into the victim’s vagina at a time when she was physically helpless, and thus unable to consent, as a result of intoxication. A person [510] is considered to be physically helpless when he or she “is unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penad Law § 130.00 [7]). According to the victim, she became intoxicated, eventually vomited and somehow “ended up back in [defendant’s] room,” where she again performed consensual oral sex on him. He then inserted the vibrator into her vagina, which she did not initially protest. The victim testified that she eventually told defendant to stop, but that he did not do so. Although this testimony was sufficient to establish that the sexual conduct was not consensual and occurred at a time when the victim was intoxicated, it also established that the victim was conscious at the time of the incident and was able to—and, in fact, did—communicate to defendant her unwillingness. Accordingly, the evidence was also legally insufficient to support the conviction of aggravated sexual abuse in the fourth degree under count six of the indictment (see People v Conto, 218 AD2d 665, 666 [1995], Iv denied 87 NY2d 845 [1995]; compare People v Fuller, 50 AD3d at 1174 [the victim became intoxicated, “passed out” and awoke to find the defendant with his finger in her vagina]; People v Sensourichanh, 290 AD2d 886, 886-887 [2002] [after drinking alcohol and smoking marihuana, the victim fell asleep and later awoke to the pain of someone having sexual intercourse with her]; People v Himmel, 252 AD2d 273, 275 [1999], Iv denied 93 NY2d 899 [1999] [the victim was aware that the defendant was sodomizing him, but he was so intoxicated that he was unable to speak]).
Contrary to defendant’s contention, we find that the evidence was legally sufficient to support defendant’s convictions of burglary in the second degree (count 11), two counts of criminal mischief in the third degree (counts 10 and 13) and one count of criminal mischief in the fourth degree (count 12), and the verdicts on said counts, as well as count nine charging criminal mischief in the fourth degree, were not against the weight of the evidence. However, because we also find that defendant was deprived of his right to the effective assistance of counsel, a new trial is warranted on these counts, as well as the remaining counts of the indictment for which defendant was found guilty (counts two, three and seven). Notably, counsel inexplicably failed to request severance of the charges in the indictment even though it appears that they were not all “joinable” offenses pursuant to CPL 220.20, and it is likely that defendant was [511] unduly prejudiced by the joint trial on all the charges.