| People v Gratton |
| 2008 NY Slip Op 04400 [51 AD3d 1219] |
| May 15, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Judy A.Gratton, Appellant. |
—[*1] David S. Hartnett, District Attorney, Cortland, for respondent.
Stein, J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered February 20, 2007, upon a verdict convicting defendant of the crimes of assault in thefirst degree and endangering the welfare of a child (three counts), and the violation of unlawfulpossession of marihuana.
In May 2006, defendant was indicted for the crimes of assault in the first degree, recklessendangerment in the first degree, endangering the welfare of a child (three counts) and criminalpossession of marihuana in the fourth degree. The criminal possession charge was subsequentlyreduced to unlawful possession of marihuana by stipulation. Following a jury trial, defendant wasconvicted of first degree assault, three counts of endangering the welfare of a child and unlawfulpossession of marihuana. County Court then sentenced defendant to a prison term of 15 years forthe assault conviction followed by five years of postrelease supervision, to run concurrently withthree concurrent one-year terms of imprisonment imposed for each of the three endangering thewelfare of a child convictions. Defendant was sentenced to a conditional discharge for theunlawful possession of marihuana conviction. Defendant now appeals.
The record evidence established that the residence that defendant shared with her threechildren was in deplorable condition. In particular, the portable crib in which defendant's thenfive-year-old son—who has Down syndrome—spent most, if not all, of his time wasinfested with [*2]cockroaches and had eggs, casings anddroppings therein. There was garbage, including soiled diapers, strewn about. The child had headlice and diarrhea, was not fed solid foods and weighed approximately 15 pounds. Treatingphysicians testified that defendant's son was in a state of advanced malnourishment as a result ofa lengthy period of inadequate feeding,[FN*]was dehydrated, had muscle wasting, emaciation and poor circulation. The doctors furthertestified that the child's condition could have resulted in his death.
Despite defendant's awareness that her son was ill, she did not seek medical help or even callany family members, one of whom was a registered nurse. In fact, she had lied to the child'spediatrician with regard to his inability to eat solid foods and failed to return the child to thedoctor for appropriate, routine care and to obtain free support services, including physical therapyand special education classes, which were readily available and some of which had been offeredto her. She also failed to make necessary applications to ensure the continuation of incomesupport services in place, such as Medicaid, food stamps, temporary cash assistance and rentassistance. Defendant testified that she was more concerned with the consequences to herselfthan the welfare of the child in the event that she sought intervention on behalf of her child.
Defendant's argument that the evidence was not legally sufficient to sustain her conviction ofassault in the first degree based on a depraved indifference to human life was not preserved forour review (see People v Gray, 86 NY2d 10, 19 [1995]; People v Lozada, 41 AD3d 1042,1043 [2007], lv denied 9 NY3d 924 [2007]). Under the circumstances here, we decline toexercise our interest of justice jurisdiction (see CPL 470.15 [3] [c]; Penal Law§§ 15.05, 120.10 [3]; People v Feingold, 7 NY3d 288, 296 [2006]; People v Suarez, 6 NY3d 202,212-213, 214 [2005]; People vPayne, 3 NY3d 266, 271-272 [2004]; People v Ford, 43 AD3d 571, 573, 574 [2007], lv denied 9NY3d 1033 [2008]; see generally People v Contes, 60 NY2d 620, 621 [1983]; People v Heslop, 48 AD3d 190,193 [2007]; People v Maddox, 31AD3d 970, 971-972 [2006], lv denied 7 NY3d 868 [2006]).
Defendant also argues that her convictions were against the weight of the evidence. Inaddressing this issue, if this Court determines that, "based on all the credible evidence a differentfinding would not have been unreasonable" (People v Bleakley, 69 NY2d 490, 495[1987]), then it "must weigh conflicting testimony, review any rational inferences that may [havebeen] drawn from the evidence and evaluate the strength of such conclusions. Based on theweight of the credible evidence, the court then decides whether the jury was justified in findingthe defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007] [citation omitted]; see People v Romero, 7 NY3d633, 636 [2006]; People v Bleakley, 69 NY2d at 495; People v Khuong Dinh Pham, 31AD3d 962, 964 [2006]). Here, even if a different finding would not have been unreasonable,the verdict was justified by the medical evidence, the testimony and the photographs depictingthe condition of the child and the home, as well as defendant's failure to act to prevent harm tothe child despite her ability to do so. Viewing the evidence in a neutral light and givingappropriate deference to the jury's "superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7NY3d 756[*3][2006]), we do not find that the verdict wascontrary to the weight of the evidence (see People v Bleakley, 69 NY2d at 495). We alsofind defendant's arguments regarding ineffective assistance of counsel to be unpersuasive (seePeople v Hobot, 84 NY2d 1021, 1024 [1995]; People v Baldi, 54 NY2d 137, 147[1981]).
In light of the above findings, "the alleged insufficiency of the evidence before the grand juryis not reviewable on appeal" (People vJamison, 45 AD3d 1438, 1440 [2007], lv denied 10 NY3d 766 [2008];see CPL 210.30 [6]). Furthermore, inasmuch as the petit jury was given the properinstructions regarding depraved indifference, any error in the instructions to the grand jury washarmless. Nor do we find error in County Court's jury charge.
Defendant faced a minimum of five years and a maximum of 25 years in prison for herconviction of assault in the first degree (see Penal Law § 70.02 [3] [a]). Under thecircumstances, defendant's sentence was not harsh and excessive (see CPL 470.15 [6][b]; People v Thompson, 60 NY2d 513, 519 [1983]).
Peters, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: This was in contrast to the twowell-fed, healthy dogs kept as pets at the residence.