Appeal from a judgment of the Chautauqua County Court (John T. Ward, Jr., J.), rendered April 19, 2004. The judgment convicted defendant, after a nonjury trial, of rape in the first degree and burglary in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed.
Memorandum: Defendant was convicted, following a nonjury trial, of rape in the first degree (Penal Law § 130.35 [2]) and burglary in the second degree (§ 140.25 [2]). He was sentenced to concurrent seven-year determinate terms of incarceration and a three-year period of postrelease supervision. Defendant contends that the verdict is against the weight of the evidence and that the evidence is legally insufficient. We disagree.
Defendant, his male friend, and two females, including the victim, spent the afternoon and evening of July 29, 2002 waterskiing, drinking alcohol, and smoking marihuana. The victim testified that, around 2:00 a.m., she went to her apartment and fell asleep on her couch. She testified that she awoke to find defendant “on top of’ and “having sex” with her. The victim pretended to be asleep throughout the entire sex act. Defendant testified on his own behalf that he entered the victim’s apartment through a side window because he saw the victim on the couch with a cigarette in her hand and was afraid for her *1034safety. He further testified that all the sexual contact that evening was consensual and took place while the victim was awake.
“A person is guilty of rape in the first degree when he . . . engages in sexual intercourse with another person . . . [w]ho is incapable of consent by reason of being physically helpless” (Penal Law § 130.35 [2]), that is, “unconscious or for any other reason . . . physically unable to communicate unwillingness to an act” (§ 130.00 [7]). The definition of physically helpless is broad enough to cover a sleeping victim (see People v Krzykowski, 293 AD2d 877, 879 [2002], lv denied 100 NY2d 643 [2003]; People v Sensourichanh, 290 AD2d 886 [2002]; People v Beecher, 225 AD2d 943, 945 [1996]). The testimony of the victim is unequivocal that she was asleep when she found defendant on top of and having sex with her. Given that evidence, we reject the contention that there was legally insufficient evidence from which the trier of fact could have found defendant guilty of rape in the first degree (see People v Bleakley, 69 NY2d 490, 495 [1987]). We are likewise unpersuaded that the verdict is against the weight of the evidence (see id.). We have reviewed the victim’s testimony and are unable to conclude that it was incredible as a matter of law (see Sensourichanh, 290 AD2d at 887; People v Neil, 289 AD2d 611, 612 [2001], lv denied 97 NY2d 758 [2002]).
All concur except Green, J.P., who dissents and votes to reverse in accordance with the following memorandum.