| People v Orcutt |
| 2008 NY Slip Op 02700 [49 AD3d 1082] |
| March 27, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Harold Orcutt,Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (David P. Lapinel of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Schoharie County (Bartlett III,J.), rendered January 20, 1999, upon a verdict convicting defendant of the crime of murder in thesecond degree, and (2) by permission, from an order of said court, entered May 29, 2007, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
On the evening of October 20, 1998, defendant was at home with his girlfriend, Tanya Smith,when he found their eight-month-old daughter in her crib with a blanket covering her head,unresponsive and apparently not breathing. Defendant and Smith had been home all afternoonwith the baby and their three other young children (two were from Smith's prior marriage). Thebaby was taken by ambulance to the hospital and pronounced dead shortly thereafter. Duringquestioning the next day by a State Police senior investigator, defendant ultimately signed awritten statement admitting that he had carried the baby to her crib sometime after 6:30 p.m. and,when she did not stop crying and kicking, he picked her up and shook her back and forth and upand down for a minute or so until her eyes rolled back and she stopped crying. He laid her down,saw she was still breathing and "wrapped her head in a small blanket . . . grabbedthe back of [her] head with [his] left hand and shoved he[r] wrapped face into the [*2]larger blanket [in the crib]." He "held his right hand on the biggerblanket and just squeezed together really hard for [about] . . . two minutes. . . until she stopped breathing." He went downstairs and watched television until8:45 p.m., and when they went upstairs to go to bed he found the baby stiff and unresponsive. Anautopsy later that day disclosed that the baby had died as a result of asphyxia due to suffocation;there were no internal or external injuries.
Defendant was charged in an indictment with intentional murder and depraved indifferencemurder.[FN1]County Court denied defendant's motion to suppress his written and oral statements to police. Attrial, defendant's written statement was introduced into evidence, and the pathologist whoperformed the autopsy testified that defendant's statement was "entirely consistent" with herautopsy findings. Smith testified, called as a defense witness, recalling little about that eveningexcept that after defendant found the baby in her crib as described, she went to a neighbors'apartment to call for help. She denied smothering the baby. Defendant also testified, indicatingthat he had found the baby in her crib with her head wrapped in a blanket, not breathing, butdenied having suffocated her.
The jury acquitted defendant of intentional murder but convicted him of depravedindifference second degree murder, for which he was sentenced to a prison term of 25 years tolife. Defendant filed a timely notice of appeal, but his appeal could not be perfected because thetrial transcript was not complete in limited respects and the court reporter had discarded her notesand records, and she was unavailable for an extended period of time. A reconstruction hearingwas finally held in March 2006 at which defendant was represented by new counsel, after whichCounty Court issued a written decision settling the record. Defendant's subsequent motion tovacate the judgment of conviction pursuant to CPL 440.10 (1) (h) based upon claims ofineffective assistance of trial counsel was denied, without a hearing, in a written decision.Defendant now appeals from the judgment of conviction and the order denying his postjudgmentmotion.
Initially, defendant's challenge to the factual allegations contained in count two of theindictment—charging depraved indifference murder—is not preserved for ourreview given that it was not raised in pretrial motions (see CPL 210.20 [1]; 210.25) andno objection was raised at trial (see People v Iannone, 45 NY2d 589, 600-601 [1978];People v Anderson, 290 AD2d 658, 658 [2002], lv denied 97 NY2d 750 [2002]).Such factual deficiencies are waivable, nonjurisdictional defects (see id.). Notably, thiscount was not jurisdictionally defective as it charged defendant with a particular named crime,cited the statutory subdivision (see Penal Law § 125.25 [2]) and allegeddefendant's commission of all of the elements of that crime; it specified the day, time and placeof the crime and named the victim, putting defendant on notice of the specific conduct alleged,i.e., he "wrapped a blanket around the victim's head and caused the victim to suffocate and die"(see People v D'Angelo, 98 NY2d 733, 734-735 [2002]; People v Rivera, 84NY2d 766, 769 [1995]; People v Iannone, 45 NY2d at 600-601; see also CPL200.50). Thus, the indictment served all of its essential functions and defendant's challenge toany nonjurisdictional deficiency in the factual allegation following "to wit" was waived.
Next, defendant claims that his conviction should be reversed on the groundthat—[*3]under current law—the evidence waslegally insufficient to establish depraved indifference murder, asserting that the evidencesupported only an intentional murder (see People v Feingold, 7 NY3d 288 [2006]). However, preservationof such a claim for appellate review requires that a specific motion (see CPL 290.10 [1])be made to the trial court addressed to the particular claimed legal deficiencies in the evidence(see People v Gray, 86 NY2d 10, 19 [1995]; People v Balram, 47 AD3d 1014, 1015 [2008]; People v Carter, 40 AD3d 1310,1311 [2007], lv denied 9 NY3d 873 [2007]; People v Riddick, 34 AD3d 923, 924 [2006], lv denied 9NY3d 868 [2007]). No such motion was made. Defendant, at most,[FN2]made a general motion to dismiss at the close of proof which was insufficient to preserve thesespecific claims (see People v Gray, supra; see also People v Finger, 95 NY2d894, 895 [2000]; People v Richins,29 AD3d 1170, 1171 [2006], lv denied 7 NY3d 817 [2006]). Defendant's postverdictmotion pursuant to CPL 330.30 was likewise not sufficient to preserve these claims (seePeople v Padro, 75 NY2d 820, 821 [1990]). Also, defendant registered no objections to thecharge as given on this count, which accurately stated the law as it existed at the time ofdefendant's 1998 trial, and does not now challenge the sufficiency of the evidence under thecharge as given. On this record, we decline to exercise our interest of justice jurisdiction to takeany corrective action based upon law developed years after defendant's trial (see CPL470.15 [3] [c]; [6] [a]; see also People v Carter, 40 AD3d at 1311; People v Danielson, 40 AD3d 174,176 [2007], affd 9 NY3d 342 [2007]; People v Maloy, 36 AD3d 1017, 1018-1019 [2007], lvdenied 8 NY3d 987 [2007]; Peoplev Parker, 29 AD3d 1161, 1162 n 1 [2006], affd 7 NY3d 907, 907-908 [2006]).
Next, despite defense counsel's vehement contentions on appeal, we find that—viewedin the context of the time of the representation—defendant was not denied the effectiveassistance of counsel at trial (see People v Baldi, 54 NY2d 137, 147 [1981]). Given thestate of depraved indifference murder jurisprudence at the time of defendant's 1998 trial, whichremained static through 2002 (seePolicano v Herbert, 7 NY3d 588, 600-601 [2006])[FN3]and did not assume [*4]its current status until People v Payne (3 NY3d 266[2004]; see People v Baptiste, 51 AD3d 184 [2008][decided herewith]), neither the failure to challenge the prosecution's use of twin-countindictments (charging both intentional and depraved indifference murder) nor the failure to moveto dismiss the depraved indifference murder count constituted ineffective representation (seePeople v Sanchez, 98 NY2d 373 [2002]; People v Register, 60 NY2d 270 [1983],cert denied 466 US 953 [1984] [both later expressly overruled in People v Feingold (7 NY3d 288[2006])]). The murder counts were submitted to the jury in the alternative, as required (seePeople v Gallagher, 69 NY2d 525, 530 [1987]; see also CPL 300.40 [5]). While ithas long been recognized that one cannot simultaneously act recklessly and intentionally (seePeople v Gallagher, 69 NY2d at 529-530; People v Baptiste, 51 AD3d at191), twin-count indictments were not uncommon and indeedpermissible in 1998 due to the fact that, even in the face of "compelling circumstantial evidenceof intent to cause death, [the Court of Appeals] considered the question of the defendant's state ofmind to be a classic matter for the jury" (Policano v Herbert, 7 NY3d at 599 [andcases cited therein] [emphasis added]; see People v Baptiste, 51 AD3d at 194; see also People v Gallagher, 69 NY2d at 530; see e.g.People v Sanchez, 98 NY2d 373 [2002]). That is, until Payne in 2004 (see Peoplev Baptiste, supra), "where both intentional and depraved indifference murder were charged inone-on-one shootings or knifings, these [twin] counts were submitted to the jury for it tosort out the defendant's state of mind unless there was absolutely no evidence whatsoever that thedefendant might have acted unintentionally. That a defendant's acts virtually guaranteed thevictim's death did not, in and of itself, preclude a guilty verdict on a theory of depravedindifference" (Policano v Herbert, 7 NY3d at 600-601 [emphasis added]; see People vFeingold, 7 NY3d at 291-294).[FN4]Thus, on these facts and under the law as it existed in 1998, defense counsel was not remiss inproceeding under twin counts or in failing to move to dismiss the depraved indifference murdercount (or the charge therefore) based upon not-yet evolved jurisprudence (see People vCarter, 40 AD3d at 1313; see alsoPeople v Danielson, 9 NY3d 342, 349 [2007] [2001 trial]; People v Parker, 7 NY3d 907, 908[2006]).
A review of the trial transcript otherwise reveals that defense counsel made appropriatepretrial motions, including seeking suppression of defendant's confession to police, vigorouslycross-examined the People's witnesses and routinely registered relevant objections. Contrary todefendant's appellate contentions, defense counsel ardently pursued a cogent defense theory thatdefendant was not responsible for the baby's death, focusing upon the mother's potentialculpability, her behavior at the time, and her history of abusive and neglectful treatment of thechildren including the baby. This was contrasted with defendant's lack of any such history ormotive and the believability of his account at trial. With regard to defendant's signed confession,defense counsel established defendant's minimal reading or writing skills and argued (anddefendant so testified) that defendant only signed it to end the interrogation after being awake forover 30 hours and distraught over his baby's death. Defendant has not shown that counsel's [*5]decision to delay an opening statement until after the People rested,which allowed him to comment on their proof (see People v Miller, 13 AD3d 890, 892 [2004]; People vMcDonald, 255 AD2d 688, 689 [1998]; cf. CPL 260.30 [4]), or to preclude thetestimony of a Sheriff's Deputy—that upon arrival at the scene, defendant said his baby"suffocated" when asked what had happened[FN5]—lacked legitimate strategic purposes (see People v Caban, 5 NY3d 143, 152 [2005]). While defensecounsel's summation to the jury was not a model of clarity, viewing the record as a whole we findthat defendant was meaningfully represented (see People v Benevento, 91 NY2d 708,712 [1998]; People v Ross, 43AD3d 567, 570 [2007], lv denied 9 NY3d 964 [2007]).
Finally, County Court properly denied defendant's CPL 440.10 (1) (h) motion, premisedupon the foregoing ineffective assistance of trial counsel grounds, without a hearing, given thatthe motion was fully reviewable upon the trial record and submissions; indeed, defendant had notshown "that the nonrecord facts sought to be established are material and would entitle him torelief" (People v Satterfield, 66 NY2d 796, 799 [1985]; see CPL 440.30 [1], [2],[4]; see also People v Murray, 300 AD2d 819, 821 [2002], lv denied 100 NY2d564 [2003]).
Each of defendant's remaining contentions has been reviewed and we find that none warrantsthe relief he seeks.
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment andorder are affirmed.
Footnote 1: Defendant was also chargedwith endangering the welfare of a child but, on consent, that charge was never submitted to thejury.
Footnote 2: We are cognizant that CountyCourt concluded, after the reconstruction hearing, that trial counsel made no motion to dismissbased upon legal insufficiency, a finding to which we would ordinarily accord deference giventhe court's role as the final arbiter of the record of the proceedings before it (see CPLR5525; see also People v Alomar, 93 NY2d 239, 245, 247 [1999]). Upon our review of thecertified record, we find that defense counsel did make a motion to dismiss based upon legalinsufficiency of the evidence at the close of proof, but only a general one. Moreover, we find therecord on appeal to be sufficient for appellate review (see People v Shire, 23 AD3d 709, 709-710 [2005], lvdenied 6 NY3d 852 [2006]; cf. People v Harrison, 85 NY2d 794 [1995]; People vJacobs, 286 AD2d 404, 405 [2001]).
Footnote 3: Policano held that thedefendant's conviction for his 1997 crime of shooting a victim in the back of the head, final in2001, is governed by People v Register (60 NY2d 270 [1983], cert denied 466US 953 [1984]).
Footnote 4: In People v Suarez (6 NY3d 202,215-216 [2005]) it was pronounced that submission of a twin-count indictment to the jury shouldin future prosecutions be extremely rare.
Footnote 5: Notably, in the immediateaftermath, defendant gave that same essential description to other nonpolice witnesses and hissigned statement indicated that he had used that word at that time.