| People v Baker |
| 2009 NY Slip Op 00464 [58 AD3d 1069] |
| January 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Avery V.Baker Jr., Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered September 10, 2007, upon a verdict convicting defendant of the crimes of murder in thesecond degree, manslaughter in the first degree, manslaughter in the second degree, endangeringthe welfare of a child and reckless endangerment in the second degree.
The 20-month-old child of defendant's girlfriend made marks on a television screen withcrayons. After defendant learned of this shortly after midnight on September 15, 2006, hedirected the child's mother to rouse the child from his crib and bring the child to him; defendantstruck him, and then he placed the child in a corner of the hallway to the apartment. When thechild's crying continued, defendant reportedly went to the hallway, lifted him to eye level, shookhim repeatedly and then threw him to the floor. He landed with his back and head striking thefloor. The child was dead within three hours.
Defendant was indicted on charges of murder in the second degree (see Penal Law§ 125.25 [4] [depraved indifference murder of a child]), manslaughter in the first degree(see Penal Law § 125.20 [4] [recklessly causing a child's death while intending tocause physical injury]), manslaughter in the second degree (see Penal Law §125.15 [1] [recklessly causing death]) and endangering the welfare of a child (see PenalLaw § 260.10 [1]). Also, based on an incident that had occurred three days earlier inwhich defendant allegedly threw the child into a metal crib, the [*2]indictment included misdemeanor charges of recklessendangerment in the second degree (see Penal Law § 120.20) and endangering thewelfare of a child (see Penal Law § 260.10 [1]). County Court dismissed theendangering count arising from the September 15, 2006 conduct of defendant, and a juryconvicted defendant of the remaining five counts. He was sentenced to three concurrent prisonterms (20 years to life, 20 years, and 5 to 15 years) for the crimes that occurred on September 15,2006 and, consecutive thereto, two concurrent one-year terms for the crimes arising from theSeptember 12, 2006 incident. Defendant appeals.
Defendant initially argues that his right to a public trial was violated when County Courtexcluded the mother of his children from the courtroom. While the right to a public trial isfundamental, it is not absolute (see People v Kin Kan, 78 NY2d 54, 57 [1991];People v Hinton, 31 NY2d 71, 73-74 [1972], cert denied 410 US 911 [1973];People v Brown, 169 AD2d 934, 935 [1991], lv denied 77 NY2d 958 [1991]),and it is within the trial court's discretion to exclude a potential witness (see People vNevarez, 245 AD2d 173, 173 [1997], lv denied 91 NY2d 943 [1998]; see alsoPeople v Sayavong, 83 NY2d 702, 708 [1994]; People v Santana, 80 NY2d 92, 100[1992]). Here, defendant had listed this individual as a potential witness. In response to CountyCourt's questions, defense counsel was initially equivocal, but became progressively morecertain in indicating that he did not plan to call her as a witness. Nevertheless, counsel'sresponses appear conditioned primarily upon the fact that the mother's personal counsel hadrestricted defense counsel from speaking directly to her; that particular restriction could havechanged during trial. Under such circumstances, we are unpersuaded that County Court abusedits discretion in excluding this individual, who appeared on defendant's witness list (seePeople v Nevarez, 245 AD2d at 173; People v Roundtree, 234 AD2d 58, 58 [1996],lv denied 89 NY2d 988 [1997]; People v Rodriguez, 177 AD2d 664, 665 [1991],lv denied 79 NY2d 1006 [1992]).
Next, defendant contends that his conviction of depraved indifference murder of a child wasagainst the weight of the evidence. Since an acquittal on this particular charge would not havebeen unreasonable, we "must weigh conflicting testimony, review any rational inferences thatmay be drawn from the evidence and evaluate the strength of such conclusions" (People v Danielson, 9 NY3d 342,348 [2007]). In conducting this review, we are careful to accord deference " 'to the fact-finder'sopportunity to view the witnesses, hear the testimony and observe demeanor' " (People v Romero, 7 NY3d 633,644 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]). Here, there wasevidence that defendant—whose violence toward the child had resulted in the childreceiving medical care only three days earlier—struck the child and placed him in a cornerin the hallway. When the 20 month old cried, defendant, who was estimated as six feet fiveinches tall, brought the child up to his eye level, shook him and then threw him to the floor.Although the child stopped breathing and went limp, defendant directed the child's mother todelay calling for help. A forensic pathologist testified that the infant's cause of death was bluntforce injuries to the head. Having weighed and "assessed the evidence in light of the elements ofthe crime as charged to the jury" (People v Johnson, 10 NY3d 875, 878 [2008]), we find unavailingthe contention that the verdict is against the weight of the evidence (see People v Heslop, 48 AD3d190, 193 [2007], lv denied 10 NY3d 935 [2008]; People v Maddox, 31 AD3d 970, 972-973 [2006], lvdenied 7 NY3d 868 [2006]; see alsoPeople v Gratton, 51 AD3d 1219, 1220-1221 [2008], lv denied 11 NY3d 736[2008]).
Defendant argues that he was deprived of a fair trial because, during summation, the Peopledisplayed computer slides with the verbatim statutory definitions of recklessness and depravedindifference. Our recent decision in People v Bryan (46 AD3d 1219, 1221 [2007], lv denied 10NY3d 809 [2008]) held that a similar presentation in summation did not require [*3]reversal and that precedent controls here.
Defendant lastly argues that the three homicide counts should have been submitted in thealternative as containing different mental states and that the failure to do so resulted in aninconsistent verdict. This issue was not preserved for our review and we decline to exercise ourdiscretionary interest of justice jurisdiction (see People v Carter, 21 AD3d 1295, 1296 [2005], affd 7NY3d 875 [2006]; People v Young, 296 AD2d 588, 589-590 [2002], lv denied99 NY2d 541 [2002]; People v Hildreth, 279 AD2d 791, 793-794 [2001], lvdenied 96 NY2d 940 [2001]; People v Soule, 251 AD2d 1056, 1056 [1998], lvdenied 92 NY2d 951 [1998]).
Nor are we persuaded that the failure to preserve this issue elevates this case to the level ofone of those rare cases where a single lapse can constitute ineffective assistance of counsel (see generally People v Turner, 5 NY3d476, 478 [2005]). While not expressing an opinion on the inconsistent verdict argument, wenote the following. This case implicated an area of law that has recently changed, with courtsstruggling over the effects of such changes (see e.g. People v Suarez, 6 NY3d 202 [2005] [four separateopinions by the Court of Appeals]; People v Heslop, 48 AD3d at 193-196, 198-199[majority and dissenting ops]; Donnino, Supp Practice Commentaries, McKinney's Cons Laws ofNY, Book 39, Penal Law art 125, 2008 Pocket Part, at 169 [observing that "(f)ew terms have. . . engaged more differences of opinion among judges as to its meaning than theterm 'depraved indifference to human life' "]). All three relevant statutes and the model chargesinclude, among other things, an aspect of reckless conduct (see CJI2d[NY] Penal Law§ 125.25 [4]; § 125.20 [4]; § 125.15 [1]). Two of the statutes were designed toenhance crimes and penalties when involving conduct by adults against young children and,thus, incorporated a reduction of some elements typically required for the crimes (see Peoplev Strawbridge, 299 AD2d 584, 592 n [2002], lv denied 99 NY2d 632 [2003];Donnino, Supp Practice Commentaries, McKinney's Cons Law of NY, Book 39, Penal Law art125, 2008 Pocket Part, at 182). In addition, one of the crimes specifically includes both anintentional and reckless mental state, a combination which is "rare" (Donnino, Supp PracticeCommentaries, McKinneys Cons Laws of NY, Book 39, Penal Law art 125, 2008 Pocket Part, at182). Finally, it is germane that the alleged error by counsel in this case did not constitute a"clear-cut and completely dispositive" defense to his client's entire criminal conduct (Peoplev Turner, 5 NY3d at 481 [failure to assert a statute of limitations defense which would haveprevented a conviction]; see People vCharlotten, 51 AD3d 1063 [2008] [allowing client to plead guilty to an order which wasa nullity]; but see People v Smith,30 AD3d 693 [2006]).[FN*]Under the circumstances, the alleged single error did not render counsel's representationineffective (see People v Carter, 7NY3d 875, 875-877 [2006]; People v Turner, 5 NY3d at 480-481).
Peters, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: People v Smith(supra) is distinguishable, in part, because the underlying omitted jury instructioninvolved a settled area with long-standing precedent on point that both parties acknowledgedcontrolled.