| People v Varmette |
| 2010 NY Slip Op 01381 [70 AD3d 1167] |
| February 18, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GreggaryVarmette, Appellant. |
—[*1]
Garry, J. Appeal from a judgment of the County Court of Essex County (Richards, J.),rendered March 12, 2007, upon a verdict convicting defendant of the crimes of murder in thesecond degree (two counts) and endangering the welfare of a child.
On August 2, 2005, Janina McDonald (hereinafter the mother) went to work and left herthree-year-old son in the care of defendant, her live-in boyfriend. When the mother returnedhome less than 12 hours later, the child was found in his bed unresponsive and barely breathing.Despite medical intervention, the child died two days later from blunt force trauma and a closedhead injury, having suffered, among other things, a transected pancreas, a perforated duodenumand subdural and subarachnoid hemorrhages. As a result, defendant was indicted and chargedwith murder in the second degree (two counts), manslaughter in the first degree and endangeringthe welfare of a child. Following a jury trial, defendant was convicted of depraved indifferencemurder (two counts) and endangering the welfare of a child and was sentenced to a controllingprison term of 25 years to life. Defendant now appeals.
Defendant contends that the Special Prosecutor became an unsworn witness during thecourse of voir dire and, in so doing, "irreparably tainted" the jury panel and committed reversibleerror. It is well settled that "[a] trial court has broad discretion in controlling voir dire"(People v Walston, 277 AD2d 593, 594 [2000], lv denied 96 NY2d 764 [2001];see People v Jackson, 306 AD2d 910, 911 [2003], lv denied 100 NY2d 595[2003]). Here, to the extent that inappropriate [*2]commentswere made, defense counsel raised prompt objections—many of which weresustained—and County Court either instructed the Special Prosecutor as to the properprocedure, curtailed the challenged questioning, clarified the scope of voir dire or gave acurative instruction. Under these circumstances, we cannot say that defendant's right to a fairtrial was prejudiced.
Defendant also argues that the evidence adduced at trial was legally insufficient to establishthat, under circumstances evincing a depraved indifference to human life, he recklessly engagedin conduct that created either a grave risk of death (see Penal Law § 125.25 [2]) ora grave risk of serious physical injury or death to the child (see Penal Law §125.25 [4]). "Evidence is legally sufficient if, when viewed in a light most favorable to thePeople, there exists any valid line of reasoning and permissible inferences that could lead arational person to the conclusion reached by the fact finder" (People v Barreto, 64 AD3d 1046, 1048 [2009], lv denied13 NY3d 834 [2009] [internal quotation marks and citations omitted]; see People vBleakley, 69 NY2d 490, 495 [1987]; People v Moore, 29 AD3d 1077, 1078 [2006]). Addressing thespecific elements of depraved indifference murder, a person acts "recklessly" when he or she "isaware of and consciously disregards a substantial and unjustifiable risk" that a particular resultwill occur (Penal Law § 15.05 [3])—here, a grave risk of serious physical injury ordeath (see Penal Law § 125.25 [2], [4]). "Depraved indifference to human life" is aculpable mental state that may be established by circumstantial evidence (see People v Feingold, 7 NY3d288, 294-296 [2006]); it requires that the defendant's conduct be "so wanton, morallydeficient and devoid of regard for the life or lives of others as to equate in blameworthiness withthose killers who intentionally cause death" (People v Ford, 43 AD3d 571, 573 [2007], lv denied 9NY3d 1033 [2008]). Depraved indifference murder may be established where the defendant'sactions are "directed against a particular victim but are marked by uncommon brutality" (People v Payne, 3 NY3d 266,271-272 [2004]). Single-victim cases require that "the defendant's actions . . .'reflect wanton cruelty, brutality or callousness directed against a particularly vulnerable victim,combined with utter indifference to the life or safety of the helpless target of the perpetrator'sinexcusable acts' " (People v Ford, 43 AD3d at 573, quoting People v Suarez, 6 NY3d 202,213 [2005]; see People v Smith, 41AD3d 964, 966 [2007], lv denied 9 NY3d 881 [2007]; People v Maddox, 31 AD3d 970,971 [2006], lv denied 7 NY3d 868 [2006]). We find that this standard was met here.
Upon arrival at Fletcher Allen Medical Center in Vermont,[FN1]the child presented with significant bruising to his arms, trunk, back, head and neck, bloodoozing from his nose and mouth, a deeply bruised scrotum, a fractured arm and an abdomen thatwas "almost as hard as a rock," the latter of which medical personnel determined was due to thepresence of free air in his abdominal cavity. Surgery revealed that the child's pancreas had been"torn in two." Additionally, doctors discovered an inch-by-half-inch tear in the child's duodenumthat was leaking intestinal contents into the abdominal cavity. The operating surgeon classifiedthese discoveries as "grade five" injuries—the most severe ranking. During the procedure,approximately one liter of fresh blood was suctioned from the child's abdominal cavity,representing between two thirds and three quarters of his overall blood volume. Although the[*3]child survived the surgery, he died the following day. Theautopsy revealed, in addition to the foregoing injuries, deep contusions to the scalp, swelling ofthe brain, significant bruising and subdural and subarachnoid hemorrhages. Cause of death waslisted as "[m]ultiple blunt trauma and closed head injury." All of the physicians who testified attrial stated that the child's injuries were consistent with blunt force trauma and would require asignificant amount of force to generate.
Defendant, by his own admission, was the sole caretaker for the child betweenapproximately 1:30 p.m. and 11:00 p.m. on August 2, 2005.[FN2]When the child began vomiting around 5:30 p.m., defendant initially was unconcerned, allegedlythinking that perhaps he had fed the child spoiled food for dinner. When the vomiting persisted,however, defendant began to fear that the child had ingested poison. Despite these concerns andthe child's deteriorating condition throughout the evening,[FN3]defendant did not contact the mother, any member of his extended family or emergency medicalservices—even though the child admittedly was not acting normally and appeared, afterfalling while left unattended in the shower, as "very dazed" and seemed as though he was"seeing stars." Between 7:00 p.m. and 8:00 p.m., defendant's landlord heard defendant yelling atthe child in an angry tone and heard the child crying, together with a "thumping" sound comingfrom the vicinity of defendant's bathroom and adjoining hallway. By 10:00 p.m., the child waswhat defendant characterized as "unresponsive," which he acknowledged was a "very serious"condition. Still, defendant did not contact the mother or summon medical aid. When the motherarrived home from work with friends and began showing them around the apartment, defendantinstructed her not to enter the child's bedroom, purportedly for fear of waking him. After thefriends left, defendant fixed the mother dinner and volunteered to check on the child. Shefollowed him into the bedroom, found the child barely breathing and wrapped in a heavy blanketon a warm summer night and called 911.
Defendant denied striking or stomping the child and suggested that some of the bruises andthe bloody lip he observed were the result of the various stumbles and falls the child hadthroughout the evening. The doctors who testified at trial, however, made clear that the injuriessuffered by the child were inconsistent with defendant's version of the events, could not haveresulted from the normal day-to-day activities of a three year old and could not have been [*4]incurred by a routine slip and fall in the bathroom.[FN4]Finally, defendant could not account for the injuries discovered on autopsy or the mediumvelocity blood spatter present in the apartment, stating only that he did not use any force on thechild that could have caused the injuries.
Viewed in the light most favorable to the People, the jury reasonably could have inferredthat the thumping and crying heard by the landlord on the evening in question were the sounds ofthe 6½-foot-tall, 240-pound defendant inflicting severe and ultimately fatal injuries uponthe child. Similarly, the level of force necessary to, among other things, transect the child'spancreas, the medical testimony establishing that such injury occurred during a time whendefendant was the sole caretaker of the child and defendant's failure to summon medical aid evenafter he admittedly knew that the child was "very sick" and "unresponsive," together with whatreasonably could be construed as his attempt to hide the child's condition from the mother, couldrationally lead the jury to conclude that the elements of reckless and depraved indifference hadbeen established beyond a reasonable doubt. Thus, we are satisfied that the verdict was legallysufficient to convict defendant of depraved indifference murder (see People v Smith, 41AD3d at 966; cf. People v Jamison,45 AD3d 1438, 1439-1440 [2007], lv denied 10 NY3d 766 [2008]; People vFord, 43 AD3d at 572-574).
Assuming, arguendo, that a different result would not have been unreasonable, wenonetheless reject defendant's claim that the verdict was against the weight of the evidence. Thejury heard—and plainly rejected—the testimony of defendant and his extendedfamily, the latter of whom offered varying explanations and theories for the bruises observed onthe child's face and his fractured arm, including bee stings, clumsy and lethargic behavior, a priorfall from a relative's porch and an automobile accident that occurred roughly two weeks prior tothe child's death. In light of, among other things, the uncontradicted medical testimony, wecannot say that the jury failed to give the evidence the weight it should be accorded. Nor didCounty Court err in denying defendant's request for a circumstantial evidence charge; suchcharge is not required where, as here, there is both direct and circumstantial evidence of guilt (see People v Hoffler, 41 AD3d891, 893 [2007], lv denied 9 NY3d 962 [2007], citing People v Golston, 13 AD3d 887,889 [2004], lv denied 5 NY3d 789 [2005]).
Finally, we find no merit to defendant's claim of ineffective assistance of counsel. To theextent that defendant contends that counsel failed to adequately investigate the underlyingcharges, interview witnesses or prepare defendant for trial, these claims concern matters outsidethe record and are more properly the subject of a CPL 440.10 motion (see People v Echavarria, 53 AD3d859, 863-864 [2008], lv denied 11 NY3d 832 [2008]). As for defendant's assertionthat counsel should not have permitted him to testify, "a defendant who has accepted theassistance of counsel nevertheless retains authority over certain fundamental decisions regardingthe case, including whether to testify in his or her own behalf" (People v Hampton, 64 AD3d 872,877 [2009], lv denied 13 NY3d 796 [2009]). There is nothing in the record to suggestthat defendant's decision to testify was anything other than voluntary, and the fact that he maynow regret that decision does not establish that he was denied meaningful representation.[*5]
Defendant further ascribes error to counsel's failure toensure that the word "homicide" was redacted from all portions of the final autopsy report.Although such error may be attributed to counsel's inadvertence,[FN5]we deem it harmless, as "there is no view of the evidence which would suggest a significantprobability that defendant would have been acquitted but for the wrongful admission of thisevidence" (People v White, 41AD3d 1036, 1038 [2007], lv denied 9 NY3d 965 [2007]; see People v Phillips, 55 AD3d1145, 1147 [2008], lv denied 11 NY3d 899 [2008]). We do not require thatrepresentation be entirely error free; here, counsel filed appropriate motions, articulated cogentand often successful objections at the suppression hearing and trial, aptly cross-examined thePeople's witnesses and advanced an alternate theory of the case. Under these circumstances, weare satisfied that defendant received meaningful representation (see People v Echavarria,53 AD3d at 864) and that the verdict as a whole "is attributable to the compelling evidence ofdefendant's guilt and not to the deficiencies of trial counsel" (People v Jones, 47 AD3d 961, 965 [2008], lv denied 10NY3d 812 [2008]). Defendant's remaining arguments, to the extent not specifically addressed,have been examined and found to be lacking in merit.
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The child had "coded" by thetime emergency medical services arrived at his residence, and it took medical personnel at thelocal hospital nearly one hour to restore his heartbeat. Due to the severity of his injuries, atransfer to the Vermont facility was arranged.
Footnote 2: Although a neighbor waspresent in the apartment at some point that evening, defendant acknowledged that this individualwas not left alone with the child and conceded that the mother could not have inflicted theunderlying injuries. This fact and the relevant timeline are significant because the operatingsurgeon testified that the pancreatic injury that he observed at roughly 8:30 a.m. on August 3,2005 was 12 to 18 hours old—placing its occurrence within the window of time whendefendant was alone with the child.
Footnote 3: In addition to the episodes ofvomiting, the child purportedly bumped his head on the toilet bowl, tripped and fell into the wallin the hallway, fell in the shower and banged his head on the top of his bedroomdresser—all of which defendant attributed to the child's dazed and weakened condition.
Footnote 4: For the child's injuries to haveresulted from a fall, the testimony revealed, a "high energy" fall would have been required, i.e.,one involving a significant distance. The child weighed approximately 42 pounds and stood only3 feet, 3 inches tall.
Footnote 5: Defense counsel objected to thefact that the final autopsy report identified the manner of death as homicide, and County Courtagreed to redact that reference. However, the word "homicide" actually appeared twice in thefinal report and, for whatever reason, was redacted in only one location.