| People v Cordato |
| 2011 NY Slip Op 04775 [85 AD3d 1304] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kari M.Cordato, Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Columbia County (Nichols, J.),rendered March 21, 2009, upon a verdict convicting defendant of the crimes of gang assault inthe first degree and assault in the second degree.
Around 1:30 a.m. on February 16, 2008, police received an unknown disturbance call andresponded to defendant's apartment in the City of Hudson, Columbia County, where they foundFloyd Sanders, the victim, on the rear porch, unconscious and bleeding. There were many peoplepresent, all friends, including defendant, codefendants Bruce Smith and Kevin Allen, as well asSmith's wife and others. Testimony at trial established that the Smiths had been at the nearbyapartment of the victim and his family when one of the friends produced a handwritten list,allegedly made by the victim, recording names—including the names ofchildren—with graphic specifics regarding his molestation or rape of them. The names ofSmith's 13-year-old stepdaughter and defendant's eight-year-old daughter were on the list. Smithbecame very angry, confronted and threatened the victim and punched him in the face severaltimes. Smith and the victim then walked down the street to defendant's apartment, followed bySmith's wife, where she showed defendant and Allen the list. Defendant recognized the victim'shandwriting on the list. Defendant's daughter was summoned from her sleep to confirm themolestation, and then the victim was beaten by several people in the group. After police arrived,Smith was arrested. The victim died a week later due to blunt force trauma to the head.Defendant, Smith and Allen [*2]were jointly indicted formanslaughter in the first degree and gang assault in the first degree. Defendant's motion for aseparate trial was denied, although Allen was later granted a severance and triedseparately.[FN1]
After a Huntley hearing, County Court denied defendant's and Smith's motions tosuppress their oral and written statements to police. At the joint trial of defendant and Smith, thekey issues were the victim's physical condition upon arriving at defendant's apartment, i.e., theextent of his injuries inflicted by Smith at the victim's apartment, and who among the group hadparticipated in the beating and contributed to the victim's further injuries at defendant'sapartment. Of those present in defendant's apartment during the assault, only Smith's wife anddefendant testified. Smith's wife confirmed—as did the victim's girlfriend—thatSmith had punched the victim several times at the victim's apartment, causing his lip to bleed.The victim, however, was able to walk with Smith to defendant's apartment where an argumenterupted among the growing group of friends over the list and who knew about it. She deniedobserving Smith strike the victim at defendant's apartment. While Allen and Smith were at firstin the kitchen arguing, according to Smith's wife, after defendant's daughter confirmed the abuse,some of the group remained in the kitchen, everyone was yelling and cursing and "all hell brokeloose."
By all accounts, the scene was chaotic and defendant became hysterical—crying,shaking, yelling and repeatedly vomiting after seeing the list. Allen hit the victim first and thendefendant hit the victim. At some point, others arrived and, during the beating, Smith went intothe living room with one friend who restrained him as he argued with another friend over thefriend's prior knowledge of the list. Smith's wife left the kitchen during the beating and, when shereturned, the victim was on the floor covered in blood and Allen was next to him also covered inblood asking for help to bring the victim to the hospital. Defendant testified that when the victimarrived with Smith, the victim's face was visibly swollen and bleeding and she told police shehardly recognized him. She testified that she never hit the victim, was not in the kitchen duringthe beating and did not observe his beating. When she returned to the kitchen, he was bloody andsurrounded by Allen, Smith and two others. She admitted to pouring rum on the victim, brieflyconsidered setting him on fire, but decided against it, and then left the room.
When police arrived and asked who did this to the victim, defendant volunteered, "If. . . ing did it, that mother f . . . er raped my daughter," and again "I didit." Minutes later, defendant told another officer, "I kicked him. I hit him with the f. . . ing chair." In her written signed statement later that morning, as redacted,defendant admitted she "went crazy" and "kicked and hit" the victim after learning of the abuse.Smith told the responding officer, "I did it, I beat his ass" because the victim was "raping littlekids." Smith made several subsequent statements to police explaining that he did it to protect hisfamily. At trial, defendant testified that she falsely confessed because she was hysterical and toprotect her friends from trouble, not realizing how seriously the victim had been injured.
Defendant was convicted after a jury trial of gang assault in the first degree, and assault inthe second degree as a lesser included offense of manslaughter in the first degree. Smith wasconvicted of gang assault in the second degree and assault in the second degree. Defendant wasthereafter sentenced as a second felony offender to a prison term of 25 years, with five years ofpostrelease supervision on the gang assault conviction, and to a concurrent five-year prison term[*3]on the assault conviction, and she now appeals.
Initially, defendant was indicted for manslaughter in the first degree but convicted of thelesser crime of assault in the second degree (see Penal Law § 120.05 [1]), and alsoindicted and convicted of gang assault in the first degree (see Penal Law § 120.07).We agree with defendant's contention that her conviction for assault in the second degree shouldbe reversed and that count dismissed because it is a lesser included offense of gang assault in thefirst degree, "since it would be impossible for defendant to have committed the latter crimewithout concomitantly committing, by the very same conduct, the former crime" (People v Alford, 65 AD3d 1392,1394 [2009], mod 14 NY3d 846 [2010]; see CPL 1.20 [37]). To be convicted ofgang assault in the first degree, the jury had to find that defendant, acting "with intent to causeserious physical injury to another person," caused such injury "aided by two or more otherpersons actually present" (Penal Law § 120.07). To convict defendant of assault in thesecond degree as charged, the jury had to conclude that defendant acted "[w]ith intent to causeserious physical injury to another person" and caused such injury (Penal Law § 120.05[1]). With respect to such inclusory concurrent counts (see CPL 300.30 [4]), "[a] verdictof guilty upon the greatest count submitted is deemed a dismissal of every lesser countsubmitted" (CPL 300.40 [3] [b]; seePeople v Horton, 46 AD3d 1225, 1227 [2007], lv denied 10 NY3d 766 [2008]).Thus, while not preserved by defendant at trial, modification of the judgment is warranted to theextent of reversing the assault in the second degree conviction and dismissing count one of theindictment (see People vBeauharnois, 64 AD3d 996, 999-1000 [2009], lv denied 13 NY3d 834 [2009]).
Defendant also contends that County Court erred in denying the request to charge assault inthe second degree as a lesser included offense of gang assault in the first degree, of which shewas convicted. Defendant joined the timely request of Smith's counsel to submit this lessercharge (see People v Ryan, 55AD3d 960, 964 [2008] [request for submission of lesser offense is not untimely if madebefore jury retires for deliberations]), and we find that there was a reasonable view of theevidence to support a finding that defendant committed the lesser offense (assault in the seconddegree), but not the greater offense (gang assault in the first degree) (see People v Miller, 6 NY3d 295,301 [2006]; People v Van Norstrand, 85 NY2d 131, 135-136 [1995]). However, underthe circumstances here, the general rule is inapplicable requiring reversal of a conviction where atrial court improperly refuses to submit a lesser offense to the jury (see CPL 300.50 [2]).Notably, defendant was convicted of gang assault in the first degree as charged in the indictment,and the court charged, as the next lesser included offense thereof, gang assault in the seconddegree, which the jury never reached having convicted defendant of the higher indicted count; thecourt refused to charge assault in the second degree as a further lesser included offense.In this scenario, "where a court charges the next lesser included offense of the crime alleged inthe indictment, but refuses to charge lesser degrees than that, . . . the defendant'sconviction of the crime alleged in the indictment forecloses a challenge to the court's refusal tocharge the remote lesser included offenses" (People v Boettcher, 69 NY2d 174, 180[1987]; see People v Waugh, 52AD3d 853, 855 [2008], lv denied 11 NY3d 796 [2008]). Thus, "defendant'sconviction of the higher count [gang assault in the first degree] forecloses her challenge to thecourt's refusal to charge the more remote lesser included offense of [assault in the seconddegree]" (People v Waugh, 52 AD3d at 855).
Next, we are not persuaded that County Court abused its discretion in denying defendant'spretrial motion and repeated mid-trial motions for severance, as the core of each defense was notin "irreconcilable conflict with the other" and there was not "a significant [*4]danger, as both defenses [were] portrayed to the trial court, that theconflict alone would lead the jury to infer defendant's guilt" (People v Mahboubian, 74NY2d 174, 184 [1989]; see CPL 200.40 [1]; People v Cardwell, 78 NY2d 996,997-998 [1991]). At trial, defendant denied participating in or witnessing the beating and she didnot implicate Smith in the beating at her apartment, although she said that the victim arrived ather apartment already injured. Defendant repudiated her own inculpatory statements topolice,[FN2]but corroborated the testimony of Smith's wife that Smith was restrained by friends in the livingroom at some point during the beating. Smith's defense was likewise that he did not participate inthe beatings at defendant's apartment and that he had not seriously injured the victim earlier whenthe list was first produced, before arriving at defendant's apartment. Smith did not testify or callany witnesses, his statements to police did not implicate defendant, and his cross-examination ofthe People's witnesses and opening and closing remarks focused on his own lack of involvementin the beating. Smith's wife, called by the People, testified that she saw defendant strike thevictim once but Smith never hit the victim.
Defendant's and Smith's defenses were not in irreconcilable conflict or mutually exclusive, asthe jury could have acquitted both, finding that neither had participated in the beating or causedthe victim's serious injuries. Defendant and Smith were charged with acting in concert for thesame crimes, and the proof against them was supplied by their own incriminating statements andessentially the same evidence and, thus, there was a strong public policy favoring joinder of theirtrials (see People v Thompson, 79AD3d 1269, 1271-1272 [2010]). While Smith's counsel extensively cross-examineddefendant and attempted to impeach her credibility, as was Smith's right (see People v Pinto, 56 AD3d 956,958 [2008]) and as the prosecutor had already done, we do not find that Smith's counsel acted asa "second prosecutor" (People v Cardwell, 78 NY2d at 998). Smith's counsel was notbound by the court's Sandoval ruling (see People v McGee, 68 NY2d 328, 333[1986]),[FN3]and we do not find that defendant was unduly prejudiced when Smith's counsel asked her about aconviction for endangering the welfare of a child. The court sustained defendant's objection anddefendant was able to explain the circumstances on redirect, minimizing its impact.
Next, we discern no errors in County Court's Huntley ruling, admitting into evidencedefendant's statements to, or in the presence of, police officers. The record fully supports thecourt's determination that defendant's inculpatory statements to the police officers who respondedto the scene were noncustodial and were in response to the officers' initial, brief investigatoryquestions aimed at ascertaining what had just occurred (see People v Steinhilber, 48 AD3d 958, 959 [2008], lvdenied 10 NY3d 871 [2008]; Peoplev Brand, 13 AD3d 820, 822 [2004], lv denied 4 NY3d 851 [2005]). Defendantwas not isolated, interrogated, handcuffed, arrested, threatened, coerced or prevented fromleaving, and she was not entitled to suppression [*5]of thosestatements based upon the absence of Miranda warnings or their claimed involuntariness(see People v Hook, 80 AD3d881, 882-883 [2011]; People vPouliot, 64 AD3d 1043, 1044-1046 [2009], lv denied 13 NY3d 838 [2009]).
Likewise, the suppression testimony established that defendant voluntarily went to the policestation hours later, around 8:00 a.m., where she spoke with a detective for about 40 minutes andprovided a signed statement. There was no evidence of coercive tactics and defendant was notarrested or handcuffed; she was free to leave and did, in fact, leave the station after giving thestatement and was not arrested for another two months. Given the noncustodial investigatorysetting, Miranda warnings were unnecessary (see People v Pouliot, 64 AD3d at1046) and there is no evidence that police purposefully delayed arresting defendant at that pointto avoid Miranda warnings (seePeople v Thomas, 21 AD3d 643, 644 [2005], lv denied 6 NY3d 759 [2005]). Tothe extent that defendant argues that her presence at the station was partially obtained by the ruseof discussing the crimes against her daughter, rather than the beating of the victim, the recordfully supports the conclusion that her presence and ultimate statement were voluntary (see People v DeJesus, 45 AD3d986, 986 [2007], lv denied 9 NY3d 1032 [2008]).
Defendant's remarks at her apartment later that day, around 12:55 p.m., to a child protectivecaseworker investigating the welfare of the children in her apartment, in the presence of a policeofficer, were also properly ruled admissible. The officer's presence was known to defendant, andit was a common practice to provide protection to caseworkers under these circumstances. Theofficer did not question defendant and, other than attempting to help calm the still-upsetdefendant, was not involved in the caseworker's questioning. The testimony supports theconclusion that defendant's statements to the caseworker, overheard by the officer, werenoncustodial, voluntary and were not made to a "public servant engaged in law enforcementactivity" or to one acting at the direction or in cooperation with law enforcement (CPL 60.45 [2][b]; see People v Texidor, 71 AD3d1190, 1191 [2010], lv denied 14 NY3d 893 [2010]; cf. People v Wilhelm, 34 AD3d40, 44-48 [2006]). Finally, defendant's initial statement to an officer while being transportedafter her arraignment in April 2008 was spontaneous, and her subsequent remark in response tohis comment was arguably not incriminating. In any event, any error in its admission washarmless (see People v Gause, 50AD3d 1392, 1394 [2008]).
The verdict is supported by legally sufficient evidence and is not against the weight of thecredible evidence. The trial proof, viewed most favorable to the People, including the testimonyof Smith's wife and regarding defendant's admissions to police, established beyond a reasonabledoubt that defendant, acting in concert with Smith, acted with intent to cause serious physicalinjury, caused such injury to the victim (or intentionally aided same) and did so while aided bytwo or more of those persons present, as required to sustain the first degree gang assaultconviction (see Penal Law §§ 20.00, 120.07; People v Sanchez, 13 NY3d 554,563-568 [2009]; People v Bleakley, 69 NY2d 490, 495 [1987]). Despite defendant'scontention, we do not find that the testimony that she was hysterical, distraught and physically illby the revelation of the victim's apparent heinous crimes against her child established, as a matterof law, her inability to form the requisite intent, i.e., her conscious objective (see PenalLaw § 15.05 [1]).
Viewing the evidence in a neutral light, a different verdict would not have been unreasonableand, weighing the probative force of the conflicting testimony and the strength of the conflictinginferences to be drawn, we are not persuaded that the jury's verdict should be set aside as againstthe weight of the evidence (see People v Bleakley, 69 NY2d at 495). Smith's [*6]wife testified that, despite being high, having a blurred,alcohol-impaired memory and being extremely upset, she saw defendant hit the victim once andthen she left the kitchen, although she could not recall the circumstances, i.e., when and how orwhere on his person defendant hit him or if the victim was still standing. She did not tell policewhen she gave statements that she saw defendant hit the victim. While she denied that herhusband ever hit the victim at defendant's apartment, her motive in implicating defendant overher husband was explored. Smith, like Allen, had considerable blood on his person when policearrived; while there was no blood on defendant's person or the leg of the chair she identified asthe one she used to strike the victim, that may have been attributable to the fact that the victim'sinjuries were largely internal, although there was blood all over the kitchen where the assaultoccurred. By all accounts, defendant's intent to injure the victim was formed suddenly, underextreme conditions of emotional distress. In the end, however, any lingering doubt as todefendant's guilt is overcome by her own statements to police, in which she admitted hitting andkicking the victim because of her belief that he had raped her daughter. Defendant's statementsand the account of Smith's wife persuasively establish that defendant was aided by two or morepersons in the group actually present who were "in a position to render immediate assistance tothe defendant" (People v Sanchez, 13 NY3d at 564).
Finally, however, we are persuaded that the present circumstances warrant reduction, in theinterest of justice, of the maximum 25-year sentence imposed upon defendant as a second felonyoffender for gang assault in the first degree, a class B violent felony (see Penal Law§ 70.02 [1] [a]; § 70.06 [6] [a]). While the jury, by its verdict, found that defendantintentionally caused or aided in causing serious physical injuries to the victim and she must beheld accountable for that conduct, its acquittal on the manslaughter charge reflects the absence ofproof that she caused injuries leading to his death. Although her admitted conduct in hitting andkicking the victim was violent, it also was clearly not premeditated and occurred under extremecircumstances of mental and emotional stress. This conduct occurred after a chaotic andhighly-charged confrontation late at night—which she did not initiate—when agroup of friends burst into her home raising graphic allegations—confirmed as to herdaughter—that the victim, a close friend who had babysat her five children many times,had severely sexually abused her young daughter. Under the circumstances, we do not find thatdefendant's role in this assault supports the conclusion that she represents the type of "threat topublic safety" that this enhanced crime against "assaults committed by gangs" is designed totarget (People v Sanchez, 13 NY3d at 565 [internal quotation marks and citationsomitted]). We have also considered that her only prior felony was nonviolent (possession of aforged instrument), as well as the fact that she was on probation[FN4]for that offense at the time of this incident. Given the available sentencing range of8
Lahtinen and Egan Jr., JJ., concur.
McCarthy, J. (concurring in part and dissenting in part). We agree with the majority on allaspects of this case except the sentence. The [*7]determination ofwhat constitutes an appropriate sentence lies within the trial court's sound discretion (see People v Minor, 45 AD3d 885,886 [2007], lv denied 10 NY3d 768 [2008]). Although this Court has the authority tomodify, "as a matter of discretion in the interest of justice," a legal sentence that is "unduly harshor severe" (CPL 470.15 [6] [b]), we exercise that discretion sparingly. It is not our role tosubstitute the sentence that we would have imposed had that been our obligation in the firstinstance; instead, we are to review the sentence imposed by the court that was granted that initialauthority. Absent extraordinary circumstances or a clear abuse of discretion by the sentencingcourt, we generally defer to that court—which observed the trial and was directly involvedwith all aspects of the case—and decline to interfere with its determination of whatsentence to impose (see People vSomerville, 72 AD3d 1285, 1288-1289 [2010]; People v Maggio, 70 AD3d 1258, 1261 [2010], lv denied14 NY3d 889 [2010]; People vElliot, 57 AD3d 1095, 1097 [2008], lv denied 12 NY3d 783 [2009]). In thiscase, we should adhere to our general policy and decline to disturb the legal sentence imposed byCounty Court.
We note that the majority does not explicitly identify how the sentencing court clearly abusedits discretion or what circumstances here are extraordinary, as opposed to factors that wouldsimply support a lesser sentence (compare People v Fernandez, 84 AD3d 661, 662-664 [2011],with id. at 664-665 [Sweeny, J., dissenting]). The reasons the majority lists for divergingfrom our usual course and reducing defendant's sentence include defendant's lack ofpremeditation, her mental and emotional stress at the time of the crime, that her prior convictionwas for a nonviolent crime, and that her actions purportedly do not represent typical "assaultscommitted by gangs" that were targeted by the statute she was found to have violated.
Regarding the last reason on that list, while the majority notes that defendant did notparticipate in what would typically be considered a gang assault, the Court of Appeals case citedby the majority does not support reduction of her sentence. In that case, the Court noted that "oneof the primary purposes of the crime of gang assault was to recognize that when a victim isconfronted by a group of individuals, rather than one individual, he or she is confronted with amore threatening, intimidating and dangerous situation that increases the possibility of escalatingviolence and physical harm" (People vSanchez, 13 NY3d 554, 565 [2009]). Defendant was not a member of a street gang, butthe statute is not limited to punish assaults by such individuals. Defendant's actions, inconjunction with those of the other individuals who were present, created a "spontaneous andfrenzied event[ ]" that was "dangerous precisely for [its] chaotic nature" (id. at 566); thisis the type of conduct that the statute was enacted to prevent, or at least punish if committed.Regardless of the Legislature's intent when enacting the statute, defendant was convicted of gangassault in the first degree and County Court was required to impose a sentence provided by lawfor commission of that crime. The court exercised its discretion in imposing such a sentencehere.
The other reasons mentioned by the majority are valid considerations affecting sentencing,which could have resulted in the imposition of a lesser sentence. But countervailing factors arealso present here to support the lawful sentence imposed by County Court. While defendant onlyhad one prior conviction, the previous crime was a felony and she was still on probation at thetime she committed this violent and fatal gang assault. Defendant was understandably upset andoutraged when confronted with allegations that the victim sexually assaulted her child, whichcould have caused her to lash out without thinking, but defendant apparently did not attempt tocontact the police and follow proper channels to deal with the victim's alleged crimes. As thecourt noted during sentencing, defendant "at any time had the [*8]opportunity to cease and desist from the activity" constituting thecrime for which she now stands convicted. She declined to avail herself of that opportunity,choosing instead to serve as a self-appointed investigator, prosecutor, judge, jury and executionerfor the victim. The victim was not charged, indicted, tried, convicted or sentenced for the crimeshe allegedly committed and, under our system of justice, he was presumed innocent. Defendantand her codefendants deprived the victim of the rights afforded by our laws to those accused ofcommitting crimes. Defendant, on the other hand, was duly convicted and sentenced inaccordance with those rights. Society has a significant interest in discouraging vigilantism, whichcould be furthered by imposing lengthy sentences on those who take the law into their ownhands.
Reducing such a sentence does not comport with the interest of justice. Nearly every victimof a crime or harmful act has family or loved ones who are emotionally affected by their death orinjury. The majority's stance here sends a message to those caring people that they will receivelighter sentences if they act on their vengeful urges and engage in self-help on behalf of theirfamily or loved ones rather than working through the proper channels of our justice system. Thismessage does not serve the interest of justice.
Defendant's sentence cannot be reduced on the basis that she assaulted the victim as theresult of extreme emotional stress when she strongly asserts that she did not assault the victim atall; these arguments are contradictory. Defendant's version of the events changed over time tosuit her own interests. When police first arrived at the scene, and before anyone knew that thevictim's condition would result in his death, defendant nearly boasted that she had attacked thevictim. In her written statement to police, which was provided several hours after defendant'sviolent and barbaric gang assault but before the victim's critical condition was known, defendantagain admitted her involvement and justified her actions because she believed that the victim hadtouched her daughter's private parts. At trial, after the victim had died and defendant was chargedwith serious crimes, she testified that her confessions were false and she denied any participationin the assault. At sentencing, defendant apologized to the victim's family and acknowledged thatshe should have intervened to stop the assault. She did not show true remorse or acceptresponsibility for her actions, however, because—consistent with her trial testimony butcontrary to her statements to the police—she continued to deny her participation in theassault, stating, "I never touched him. I'm already doing time for a crime I didn't do." The jurycould not have convicted defendant if it believed her protestations of innocence; in other words,the jury considered her testimony false. As noted by the Probation Department in the presentenceinvestigation report, defendant "ha[d] the presence of cognitions that serve to justify, support, orprovide rationalizations for her criminal behavior [which] include moral justification, refusal toaccept responsibility, blaming the victim, and excuse making that minimizes the seriousness andconsequences of her criminal activity." These factors militate against a reduced sentence(compare People v Boone, 287 AD2d 461, 461-462 [2001], lv denied 97 NY2d727 [2002], with id. at 462-463 [Smith, J., concurring in part, dissenting in part]).
Although defendant was acquitted of manslaughter, the jury found her guilty of gang assaultand her participation in that crime contributed to and resulted in the victim's brutaldeath.[FN1][*9]Juries acquitted one codefendant of all charges, found anothercodefendant guilty of gang assault in the second degree and assault in the second degree, andfound defendant guilty of gang assault in the first degree and assault in the seconddegree;[FN2]thus, according to the juries, defendant was determined to be the most culpable among all of theparticipants in the savage beating that resulted in the victim's death. After noting "the heinousand violent nature of the crime which [defendant] perpetrated," County Court imposed themaximum sentence. While the majority apparently would not have chosen to impose themaximum sentence on defendant under the circumstances here if they were imposing thesentence in the first instance, the statute provides us with the authority to modify sentences thatare "unduly harsh or severe," not to sentence defendants de novo (CPL 470.15 [6] [b]). Becausesome factors present here support the maximum sentence and others would support a morelenient sentence, it would be contrary to our policy and precedents of deference to say thatCounty Court—after weighing those factors—clearly abused its sentencingdiscretion or that extraordinary circumstances exist that would warrant this Court modifying thesentence in the interest of justice (seePeople v Lanfair, 18 AD3d 1032, 1034 [2005], lv denied 5 NY3d 790 [2005]).Therefore, we should defer to the sentencing court's determination and affirm the lawful sentenceimposed for defendant's conviction of gang assault in the first degree.
Kavanagh, J., concurs. Ordered that the judgment is modified, on the law and as a matter ofdiscretion in the interest of justice, by reversing defendant's conviction of assault in the seconddegree under count one of the indictment; said count dismissed, the sentence imposed thereonvacated, and defendant's sentence under count two of the indictment is reduced to 15 years; and,as so modified, affirmed.
Footnote 1: Allen was reportedly acquittedafter his separate trial.
Footnote 2: Defendant's written statement topolice was redacted at trial so as to remove all references to Smith's actions, to avoid aBruton confrontation problem if defendant did not chose to testify (see Bruton vUnited States, 391 US 123 [1968]; cf. People v Pinto, 56 AD3d 956, 958 [2008]).
Footnote 3: The People had alreadyquestioned defendant regarding her prior forgery conviction, as permitted by County Court'sSandoval ruling.
Footnote 4: After this arrest, defendant wassentenced to an additional 1
Footnote 1: The official cause of death was"[m]ultiple system organ failure due to severe closed head injuries with cerebral edema due toblunt force trauma." Although, as the majority notes, the victim did not die until a week after theassault, he was comatose during that entire time and underwent brain surgery to relieve thepressure in his skull before he developed pneumonia and his organs failed.
Footnote 2: The majority correctly vacateddefendant's conviction for assault in the second degree.