The Appellate Division continued in relevant part: The evidence adduced at trial did not necessarily produce useful information on all these factors that may explain why the judge did not make findings on some of these components. The judge did find, though, that plaintiff was able “to recall the significant events,” despite her testimony that she was unable to recall some “details” and her memory was “hazy” about others. In the final analysis, we will not attempt to discern whether the judge’s specific findings about plaintiff’s intoxication might be interpreted as the equivalent of a finding that plaintiff’s faculties were prostrated. We instead remand for further consideration of the issue now that we have determined the correct standard to be applied.
To summarize, we conclude that mere intoxication will not suffice; to prove a mental incapacity caused by intoxication, the alleged victim must demonstrate by a preponderance of the evidence that her faculties were prostrated. Because the judge did not apply this standard, we remand for further findings. The judge may reopen the record to allow for additional testimony on this or any other subject if he concludes it would be helpful in analyzing and reconsidering not only the intoxication issue but all aspects of the consent issue.
We also do not foreclose the judge’s receipt of additional testimony or his further amplification of his second prong findings, which we do not otherwise address at this time, despite defendant’s contention that the evidence was inadequate and the findings speculative.
Remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
The remand here is almost as good as a loss for the defense. The Supreme Court has provided the trial court with a roadmap to amplify its decision and avoid reversal during the next round of appeals. Moreover, it is not requiring the trial court to take additional testimony that the defense could potentially use to improve the record.
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