| People v Lewie |
| 2009 NY Slip Op 07887 [67 AD3d 1056] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alicia Lewie,Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George, for respondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Warren County (Hall, Jr.,J.), rendered June 26, 2008, upon a verdict convicting defendant of the crimes of manslaughter inthe second degree (two counts), reckless endangerment in the first degree and endangering thewelfare of a child, and (2) from a judgment of said court, rendered June 27, 2008, whichresentenced defendant.
On the evening of November 13, 2007, a 911 call was received at the Warren CountySheriff's Department from a woman later identified as defendant to the effect that she was enroute to the hospital because she had fallen in the shower while holding her infant child and, as aresult, the child was severely injured. Upon defendant's arrival at Glens Falls Hospital,emergency room medical staff found that the child was not breathing and had no heartbeat. Aninitial examination revealed that the child—who was less than eight monthsold—had extensive bruising at different stages of healing around his eyes and head, redmarks on his neck and torso and bite marks on both arms. Radiological studies determined thatthe child's right arm was broken, his lung was collapsed, his liver was lacerated, numerous ribswere fractured and that multiple bleedings had occurred in and around the brain. After extensiveefforts were made to resuscitate the child, his heartbeat was restored, but because he could notbreathe on his own, he was placed on a respirator. The child was later transferred to AlbanyMedical Center and, after no brain activity was detected, life support was removed. Shortlythereafter, at 6:18 p.m. on November 14, 2007, the child expired.[*2]
Because of the injuries noted on the child upon his initialadmission into the hospital and inconsistencies in the statements made by defendant and herroommate/boyfriend, Michael Flint, Jr., as to the cause of these injuries, emergency roompersonnel notified the Glens Falls Police Department, which immediately commenced aninvestigation. Defendant repeated the claim to the police that she had made to emergency roompersonnel that the child had been injured when she fell while holding him in the shower. Overthe next 48 hours, defendant made a series of statements to the police, two of which werereduced to writing, in which she acknowledged that she had lied when she had said that the childwas with her in the shower when injured; instead, defendant told police that on November 12,2007 she had gone to work and left the child with Flint, who, during a telephone call later thatday, told her that the child had been injured when he slipped out of Flint's hands in the showerand struck his head and neck on the faucet and shower bar. According to defendant, when shetold her coworkers what had happened with the child, they advised her to examine the childclosely for any evidence of head trauma and consider taking him to a doctor for appropriatemedical attention. Upon her return home that evening, defendant saw that the child's eyes wereblack and blue, his lip was swollen and there were red marks on his neck and torso. However,defendant claimed that the child did not appear to have a concussion and, when he otherwiseappeared normal, she decided not to seek medical attention. Instead, she put the child to bed andgave him Tylenol, Orajel and a bottle of formula. Throughout the night, defendant checked onthe child's condition and, on the following morning, noted that while some of the bruises on hisface looked to be healing, the injuries to his eyes, neck and torso had blackened and appeared tohave grown worse.
The next day, defendant, with the child and Flint, briefly left their apartment and stopped atthe local Community Action Program.[FN1]There, when an employee asked about the bruises that she had noticed on the child's eyes andface, defendant stated that they had occurred as a result of a fall in the shower and that a doctorwho examined the child said he was in fine condition. Later that day, defendant went to workand once again left the child in Flint's care. That evening, when Flint arrived with the child topick defendant up from work, he told her that he could not wake the child. Defendant took thechild out of the car and when she found that he was limp and having difficulty breathing, shecalled 911 and drove to the hospital. After the child had been transferred to Albany MedicalCenter, the Department of Social Services filed an emergency application in Family Court toremove the child from defendant's care and, in connection with that proceeding, at approximately3:25 p.m. on November 14, 2007, defendant was assigned legal counsel. It was later that sameday that the child was removed from life support and succumbed to his injuries.
The post-mortem examination established that the child had sustained numerous blunt forceinjuries to his head and face, abrasions across his neck and bite marks on both arms.[FN2]X rays revealed that the child had numerous fractures to his ribs, some of which had occurred aslong ago as four weeks prior to his death and were in various stages of healing. In addition, itwas confirmed that the child's liver had been lacerated and that there had been a substantial [*3]accumulation of blood in and around his brain. The cause of deathwas established as cerebral edema and subdural hemorrhage with a subarachnoie hemorrhagedue to closed head injuries.
After the child's death, defendant was brought to police headquarters where, for a secondtime, she was read her Miranda warnings and, once again, agreed to provide the policewith a written statement regarding the circumstances surrounding her son's death. In thisstatement, defendant repeated much of what she had previously told the police regarding whathad transpired in the days leading up to her son's death but, for the first time, claimed that whenshe had arrived home on the evening of November 12, 2007 and saw the child's injuries, sheattempted to bring him to a local hospital, but Flint prevented her. She stated that she believedFlint would hurt her if she pressed the issue and did not seek medical treatment for the child atthat time because she was afraid of how Flint would react if he were ultimately found to beresponsible.[FN3]Shortly after providing this statement, defendant was arrested and subsequently charged byindictment with two counts of manslaughter in the second degree (counts six and seven),reckless endangerment in the first degree (count eight) and endangering the welfare of a child(count nine).[FN4]After a jury trial, defendant was convicted of each count and sentenced to an aggregate prisonterm of 7
Preliminarily, defendant argues that once she was assigned counsel in the Family Courtremoval proceeding, any statement she subsequently made to the police should have beensuppressed as having been taken in violation of her constitutional right to counsel. We disagree.While the criminal investigation and the Family Court removal proceeding "arise out of the samematrix, they are unrelated in that the [Family Court] proceeding was a civil proceeding focusingon the children, whereas the purpose of this action was to secure a criminal conviction againstdefendant" (People v Kent, 240 AD2d 772, 773 [1997], lvs denied 90 NY2d1012 [1997], 91 NY2d 875 [1997]; see People v Roselle, 84 NY2d 350, 355 [1994];People v Smith, 62 NY2d 306, 314-315 [1984]; People v Snyder, 221 AD2d 870,871 [1995], lv denied 88 NY2d 885 [1996]). Since the Family Court proceeding was[*4]civil in nature, the assignment of counsel in that proceedingdid not automatically trigger defendant's right to counsel in the criminal investigation that wasbeing conducted to determine the cause of her son's death.
As for the statements that were admitted into evidence at trial, we note that defendant wasnot in custody when, prior to her son's death, she was first interviewed by the police at thehospital or later that same evening when she agreed to accompany them to the police departmentto give a statement (see People vPouliot, 64 AD3d 1043, 1046 [2009]; People v Baggett, 57 AD3d 1093, 1095 [2008]; People v Ward, 42 AD3d 579,580 [2007], lv denied 9 NY3d 883 [2007]). As for her two written statements, each wastaken only after defendant was properly advised of her Miranda rights, agreed to waiveher constitutional rights, and volunteered to talk to police as to the circumstances surroundingher son's hospitalization and subsequent death (see People v Ward, 42 AD3d at 580; People v Maddox, 31 AD3d 970,973 [2006], lv denied 7 NY3d 868 [2006]). Therefore, we conclude that County Courtcorrectly denied her motion to suppress and properly admitted these statements into evidence attrial.
Defendant also contends that her convictions for manslaughter in the second degree andreckless endangerment in the first degree were not based upon legally sufficient evidence andwere against the weight of the evidence introduced at trial. As for her claim of legal sufficiency,we note that a criminal conviction will be sustained as being supported by legally sufficientevidence "when the proof, viewed in the light most favorable to the prosecution, establishes theelements of the crime beyond a reasonable doubt" (People v Baker, 4 AD3d 606, 609 [2004], lv denied 2NY3d 795 [2004]; see People vBarreto, 64 AD3d 1046, 1048 [2009]). Here, defendant stands convicted of two countsof manslaughter in the second degree, the first alleging conduct that occurred between November11, 2007 and November 14, 2007, while the second focused on a continuing course of conductthat occurred from October 1, 2007 until the date of the child's death. Count six, as amplified bythe bill of particulars, alleges that defendant, despite being aware that the child had beenseriously injured while in Flint's care on November 12, chose not to seek medical care for thechild and, as a result, he died. Defendant contends that the evidence at trial introduced on thischarge failed to establish that she was aware of the true extent of her son's injuries when she firstlearned of his fall in the shower and, as a result, could not have known the mortal risk thoseinjuries posed to his health and well-being prior to taking him to a nearby hospital. She alsoargues that even if it were proven that she was truly aware of the seriousness of those injuries onthe night of November 12, it was not established at trial that these injuries actually caused hisdeath.
While it is undisputed that defendant, after being told by Flint of the incident in the shower,observed that the child had bruises and abrasions on his head, face and body, it was notestablished at trial that, based upon these observations, she knew that the child had sustainedlife-threatening injuries that would ultimately cause death. In fact, upon the child's admission tothe hospital, his internal injuries—the cranial bleeding, the lacerated liver and fracturedribs—were only detected after multiple X rays were performed and blood tests wereconducted by hospital personnel. In addition, the medical examiner testified that the internalinjuries that caused the child's death were only detected upon his internal inspection of the child'sremains during the postmortem examination. Equally important, while the medical examinerultimately concluded that death was the result of trauma to the child's head, he was unable, basedon his examination, to precisely pinpoint the period in time when the trauma resulting from theseinjuries was inflicted upon the child and could only offer an opinion that these injuries occurredat any time "within four days [prior to his death]." As a result, the evidence at trial failed toestablish, as this [*5]count in the indictment required, thatdefendant was aware that her son had been gravely injured as a result of the fall in the shower(see Penal Law § 15.05 [3]; § 125.15 [1]; People v Wong, 81 NY2d600, 608 [1993]; People v Northrup, 83 AD2d 737, 738 [1981]), or that the injuries thathe incurred as a result of that fall ultimately caused his death (see People v Stewart, 40NY2d 692, 697 [1976]; People vRaymond, 56 AD3d 1306, 1307-1308 [2008], lv denied 12 NY3d 820 [2009];People v Phippen, 232 AD2d 790, 791 [1996]; see also People v Wong, 81NY2d at 608). For these reasons, defendant's conviction for manslaughter in the second degreeas alleged in count six must be reversed and the count dismissed.[FN6]
We do not reach the same conclusion as to defendant's conviction on the remaining charge ofmanslaughter or her conviction for reckless endangerment in the first degree. As previouslynoted, this charge of manslaughter focused on a course of conduct that occurred over a 45-dayperiod immediately prior to the child's death. As amplified by the bill of particulars, it allegesthat during this period, defendant actually became aware that Flint was physically abusing herson and chose to ignore the grave risk this conduct posed for the child by repeatedly leaving himin Flint's unsupervised care. In that regard, witnesses, including members of defendant's ownfamily, her friends and coworkers, all testified that defendant told them that Flint, on numerousoccasions, had physically abused her and was physically abusing her child in her absence. In oneinstance, defendant is said to have told a coworker that Flint shook the child and bit him when hecried and that "she never knew what she was going to go home to" when she left the child alonewith Flint. In addition, defendant told police that she had previously told Flint that he shouldtreat the child as if he were "glass" and that he should "shake [a] yellow teddy bear instead of[the baby]." Finally, medical evidence introduced at trial conclusively established thatdefendant's son was a battered child and that he had been repeatedly assaulted during the periodof time that defendant would leave him in Flint's care. This charge of manslaughter was notbased upon one discreet act but, rather, upon a course of conduct that occurred in the weeksimmediately prior to the child's death. Therefore, we are of the view that the evidence introducedat trial, when viewed in a light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), established each element required to convict defendant of recklessmanslaughter under count seven of the indictment (see Matter of Anthony M., 63 NY2d270, 280 [1984]; see also People v Phippen, 232 AD2d at 790-791; People vSalley, 153 AD2d 704, 705 [1989], lv denied 75 NY2d 817 [1990]).
As for defendant's conviction for reckless endangerment in the first degree, it must be shownby legally sufficient evidence that defendant recklessly engaged in conduct that created a graverisk of death to her son, and did so under "circumstances evincing a depraved indifference tohuman life" (Penal Law § 120.25). Again, reference is made to the testimony ofdefendant's friends and coworkers to the effect that she knew that Flint was physically abusingher son. Those admissions, coupled with defendant's own observations of the child's conditionthroughout this period and the extensive list of injuries uncovered at the autopsy, established thather decision to leave the child unattended in Flint's care was, at the very minimum, reckless, and[*6]clearly placed the child in mortal peril. Her failure to takeappropriate steps to address this situation and her refusal to obtain medical care for the child,when it was painfully apparent that he had been injured, demonstrates a depraved indifference ondefendant's part to the threat these injuries—and Flint's conduct—posed to her son'ssurvival (see People v Roe, 74 NY2d 20, 24 [1989]; People v Parrotte, 267AD2d 884, 886 [1999], lv denied 95 NY2d 801 [2000]). Inasmuch as "there is a 'validline of reasoning and permissible inferences which could lead a rational person to the conclusionreached by the jury,' " we are of the view that defendant's conviction for reckless endangermentin the first degree was supported by legally sufficient evidence (People v Maddox, 31AD3d at 971, quoting People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Wisdom, 23 AD3d759, 760-761 [2005], lv denied 6 NY3d 840 [2006]).
Finally, despite defendant's contention to the contrary, we find that the convictions ofmanslaughter in the second degree under count seven and reckless endangerment in the firstdegree were supported by the weight of the evidence. We note from the evidence presented whatis painfully obvious and not the subject of meaningful dispute—this eight-month-old childhad been severely battered and physically abused over much of his life and that these assaultswere perpetrated upon him during a period of time when defendant was charged with his custodyand ongoing care. Defendant's statements, coupled with her own observations of the injuries thatthe child sustained during this period, demonstrate that she was well aware of what Flint wasdoing to her child and knew the risk Flint posed to him. Despite this knowledge, defendant chosenot only to ignore that risk, but to continue to expose the child to this peril by leaving him alonein Flint's care. While defendant puts much of this testimony in issue—and at trial deniedever being abused by Flint or seeing him abuse her child—it is for the jury in the finalanalysis to assess the credibility of the witnesses who testified (see People v Barreto, 64AD3d at 1048). Having reviewed and weighed the evidence in the record, it cannot be said thatthe jury's verdict was against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-645 [2006]; People vBleakley, 69 NY2d at 495).
Defendant also challenges County Court's failure to grant her motion for a mistrial based onjuror misconduct. During jury deliberations, one of the jurors passed a note to County Courtasking if she could read a statement in which she thanked all involved, including defendant, forallowing her to serve as a juror, asked the court for the name of a divorce lawyer and requestedthe name and phone number of the Assistant District Attorney whom she described as a "cutie."The court immediately reprimanded the juror for the content of the statement, characterized heractions as inappropriate and conducted an inquiry as to her ability to remain fair and impartial.After the court met with the juror and concluded that the juror had not engaged in conduct thatrendered her unqualified to serve, defense counsel moved for a mistrial, alleging that the noteevinced the juror's clear bias in favor of the prosecution.[FN7]
According to CPL 270.35 (1), "[i]f at any time after the trial jury has been sworn and beforethe rendition of its verdict, . . . the court finds, from facts unknown at the time ofthe selection of the jury, that a juror is grossly unqualified to serve in the case or hasengaged in misconduct of a substantial nature, . . . the court must dischargesuch juror" (emphasis added; compare CPL 270.20 [1]). While the note was undoubtedlyinappropriate, we agree with County Court that a mistrial was not required. Not only did thejuror repeatedly assure the court that she could be fair, but she recognized the inappropriatenessof her actions, apologized to all concerned [*7]and, moreimportantly, did not at any time express a predisposition towards any of the parties involved inthe trial. County Court conducted an appropriate inquiry into the juror's ability to be fair andjustified its conclusion that she was not of "a state of mind which would prevent the rendering ofan impartial verdict" (People vLapage, 57 AD3d 1233, 1235 [2008]; see People v Anderson, 70 NY2d 729,730 [1987]; People v Buford, 69 NY2d 290, 299 [1987]; People v Littebrant, 55 AD3d1151, 1153 [2008]). Therefore, a mistrial was not warranted.
Defendant next contends that County Court committed reversible error in its response to thejury's request for a supplemental instruction on the definition of recklessly (see PenalLaw § 15.05 [3]). Specifically, defendant complains that County Court, in its response tothe jury's inquiry, did not emphasize that the risk to be perceived had to be so serious that, if notavoided, it could result in the death of another person. In this regard, we note that County Courtrepeatedly advised the jury in its charge that to convict, the jury must be satisfied thatdefendant's conduct has served to create a "substantial and unjustified risk that another person'sdeath will occur."
Defendant also takes exception to County Court's statement made in its supplemental chargethat such risk involves "what [defendant] saw, what [defendant] should have seen, andwhat [defendant] disregarded" (emphasis added; see Penal Law § 15.05 [3];§§ 120.25, 125.15 [1]). In effect, defendant contends that such phrasing constitutedan incorrect statement of applicable law and instructed the jury to apply a less rigorous standardof proof than what is otherwise required for it to convict defendant of reckless manslaughter. Inreviewing the court's instruction, "the challenged portions of the charge should not be examinedin a vacuum, but must be assessed in the context of the jury instructions in their entirety. Aninstruction 'may be sufficient, indeed substantially correct, even though it contains phraseswhich, isolated from their context, seem erroneous. The test is always whether the jury, hearingthe whole charge, would gather from its language the correct rules which should be applied inarriving at [a] decision' " (People v Simmons, 66 AD3d 292, 295 [2009] [citationsomitted], quoting People v Drake, 7NY3d 28, 33-34 [2006]). Inasmuch as the court stated twice that the recklessness ofdefendant's conduct depended upon what she was "aware" of and what she "consciously"disregarded, its instruction, when viewed in connection with its earlier charge, provided the jurywith a proper answer to its question (compare People v Neptune, 51 AD3d 949, 950 [2008]).
Defendant challenges approximately 45 evidentiary rulings made by County Court andcontends that each involved evidence that was either irrelevant, prejudicial or inadmissible ashearsay. We have reviewed every challenge and, in addition to finding that many areunpreserved due to defendant's failure to object to them, we also are of the view that they arewithout merit or do not amount to reversible error (see People v Crimmins, 36 NY2d230, 242 [1975]; People v Phillips,55 AD3d 1145, 1147-1148 [2008], lv denied 11 NY3d 899 [2008]).
Finally, inasmuch as the sentence that defendant received on the remaining manslaughterconviction must run concurrent to any sentence imposed for her conviction of recklessendangerment, the sentence as rendered by County Court must be modified accordingly(see Penal Law § 70.25 [2]; People v Laureano, 87 NY2d 640, 643 [1996];compare People v Ortega, 245 AD2d 213, 214 [1997], lv denied 91 NY2d 1011[1998]). In our view, the resulting sentence of 5 to 15 years, given the conduct encompassed bythese convictions, is neither harsh nor excessive. Defendant's remaining contentions have beenreviewed and found to be without merit.[*8]
Cardona, P.J., Peters, Stein and McCarthy, JJ., concur.Ordered that the judgments are modified, on the law, by reversing defendant's conviction ofmanslaughter in the second degree under count six of the indictment; dismiss said count and thesentence imposed thereon and direct that defendant's sentences on counts seven and eight of theindictment shall run concurrently to one another; and, as so modified, affirmed.
Footnote 1: Flint was on probation for aconviction relating to animal cruelty and was participating in an alternate sentencing program.
Footnote 2: The fracture was apparently theresult of a bite inflicted on the child's arm.
Footnote 3: At trial, defendant disavowedthis statement claiming that she had thought the child was fine, saw no reason to seek medicaltreatment and denied that Flint had physically abused her or her child.
Footnote 4: In the same indictment, Flintwas charged with murder in the second degree (two counts), manslaughter in the first degree(two counts) and endangering the welfare of a child. He ultimately pleaded guilty to two countsof murder in the second degree and manslaughter in the first degree and was sentenced to aprison term of 22 years to life. Flint's judgment of conviction was affirmed on appeal (Peoplev Flint, 66 AD3d 1245 [2009]).
Footnote 5: Specifically, defendant receivedtwo concurrent terms of 5 to 15 years for the two manslaughter convictions; 2
Footnote 6: Given our decision on this countof the indictment, we do not address defendant's contention that the two counts of manslaughtercontained in the indictment were multiplicitous, a claim that, in any event, was not preserved forour review (see People vThompson, 34 AD3d 931, 932 [2006], lv denied 7 NY3d 929 [2006]).
Footnote 7: There were no alternate jurorsavailable.