| People v Polomaine |
| 2011 NY Slip Op 07870 [89 AD3d 1215] |
| November 10, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent-Appellant, v RebeccaPolomaine, Appellant-Respondent. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent-appellant.
Malone Jr., J. Cross appeals from a judgment of the County Court of Schenectady County(Giardino, J.), rendered April 30, 2008, upon a verdict convicting defendant of the crimes of assault inthe first degree and reckless assault of a child.
In 2007, defendant was indicted and charged with assault in the first degree, reckless assault of achild, and reckless assault of a child by a daycare provider after a two-year-old female child sufferedsevere injuries, including a skull fracture and permanent brain damage, while in defendant's care onMarch 27, 2007. Following a jury trial, defendant was found guilty as charged, although the convictionof reckless assault by a daycare provider was subsequently dismissed by County Court. Thereafter,defendant was sentenced to a prison term of 18 years, with five years of postrelease supervision.Defendant appeals.[FN1][*2]
Initially, we are not persuaded by defendant's contention thatthe convictions are against the weight of the evidence. The conviction of assault in the first degreerequired proof that, "[u]nder circumstances evincing a depraved indifference to human life, [defendant]recklessly engage[d] in conduct which create[d] a grave risk of death to another person, and therebycause[d] serious physical injury to another person" (Penal Law § 120.10 [3]). The conviction ofreckless assault of a child required proof that defendant "recklessly cause[d] serious physical injury tothe brain of a child less than five years old by shaking the child, or by slamming or throwing the child soas to impact the child's head on a hard surface or object" (Penal Law § 120.02 [1]).
The evidence established that prior to March 27, 2007, the child had been a healthy toddler andthat her severe injuries were not the result of natural causes and did not occur before the time that shearrived at defendant's house on the day in question. According to the testimony at trial, defendant calledthe child's mother to tell the mother that she had put the child down for a nap, but that the child hadvomited in her sleep and was making noises and defendant could not wake her up. The mother directeddefendant to call 911 and the child was brought to the hospital, where it was determined that the childwas near death, not breathing on her own, and immediate surgery was necessary to relieve significantswelling on her brain and remove a blood clot.
During the investigation that day, defendant denied any knowledge of any injury to the child's head,but stated that she thought that the child had not been as active as usual. During subsequent questioning,however, defendant claimed that the child had fallen, hit her head and had complained about ear painshortly before defendant put her down for a nap. A pediatric neurosurgeon testified that the child's"life-threatening injuries" were not consistent with injuries sustained in an accidental fall; rather, theywere akin to the type of injuries sustained in falls "from significant heights" or the result of "verysignificant forces applied to the head," such as in motor vehicle accidents. Although defendant was theonly adult in the house, defendant's young children, including her four-year-old daughter, were alsopresent that day and the medical experts were asked if, hypothetically, an average four year old couldhave caused the child's injuries. The child's treating pediatric neurosurgeon opined that it was veryunlikely that a four year old could have caused the child's injuries, but that it was "obvious that [thechild] sustained a smash of some sort to the head or she was hit onto a hard surface with severe force."He further testified that "within a very short period of time" after sustaining the head injuries, the childwould have been unconscious, which indicated that the injuries had not occurred several hours beforethe child was found unresponsive by defendant. Although defendant's expert witness opined that it washypothetically possible that a four-year-old child could have caused the child's injuries by running fullforce into her and knocking into a flat surface, he also acknowledged that defendant's statements wereinconsistent with the child's injuries. Viewing this evidence in a neutral light, and according greatdeference to the jury's credibility assessments of the witnesses, it cannot be said that the verdict wasagainst the weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Tyrell, 82 AD3d 1352, 1354 [2011], lv denied 17NY3d 810 [2011]).[*3]
Nor are we persuaded that County Court abused its discretionby permitting the People to present evidence that, while in defendant's care, defendant's daughterpreviously had suffered a skull fracture and the victim in this case previously had suffered a fracturedtibia. Evidence of the prior injuries to those children was admissible "to establish that [the victim's]injuries were not accidental or were caused by another individual" (People v Engler, 150 AD2d827, 829 [1989], lv denied 75 NY2d 770 [1989]; see People v Henson, 33 NY2d63, 72 [1973]; People v Wright, 81AD3d 1161, 1162 [2011], lv denied 17 NY3d 803 [2011]), particularly considering thatdefendant disclaimed knowledge of what caused the child's injuries and claimed that they wereaccidental. The record reflects that the court appropriately weighed the probative value of suchevidence against its potential prejudicial effect (see People v Blair, 90 NY2d 1003 [1997]) andrepeatedly instructed the jury that such evidence was not permitted to be used as evidence ofdefendant's propensity to commit the crimes with which she was charged (see People v Harris,98 NY2d 452 [2002]).
Defendant's remaining contentions do not warrant extended discussion. Her claim that she wasdeprived of her right to a fair trial because the People elicited testimony and made comments about thefact that she provided limited consent to the police search of her home is unpreserved for review anddoes not warrant reversal in the interest of justice. We are not convinced that County Court erred byproviding the jury with a verdict sheet that contained statutory language considering that where, as here,"the court submits two or more counts charging a violation of the same section of a law defining anoffense," the court may include such language (CPL 310.20 [2]; see People v Rosario, 26 AD3d 206, 207 [2006], lv denied 7NY3d 762 [2006]).[FN2]Contrary to defendant's contention, the court neither failed to meaningfully respond to the jury's requestfor a read-back of a portion of one witness's testimony, nor abused its discretion by supplementing itsinitial response (see generally People v Weinberg, 83 NY2d 262, 267-268 [1994]).Defendant's claims that various rulings of the court were prejudicial and deprived her of a fair trial, thather counsel provided ineffective assistance and that her sentence is harsh and excessive also have beenconsidered and found to be lacking in merit.
Rose, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.Ordered that the cross appeal is dismissed, as abandoned.
Footnote 1: Although the People filed a notice ofcross appeal from County Court's dismissal of defendant's conviction of reckless assault of a child by adaycare provider, the People have not raised any challenge to the dismissal in their brief on appeal and,thus, the cross appeal is dismissed as abandoned (see Matter of Bjork v Bjork, 58 AD3d 951,952 n [2009], lv denied 12 NY3d 708 [2009]).
Footnote 2: Although the verdict sheet containedfour counts, defendant specifically objected only to the fact that the count pertaining to reckless assaultof a child contained the words from the part of the statute stating "by shaking the child" (Penal Law§ 120.02 [1]). Accordingly, to the extent that defendant now challenges the remainder of theverdict sheet, such contentions are unpreserved (see People v Washington, 9 AD3d 499, 500-501 [2004], lvdenied 3 NY3d 682 [2004]), as are her contentions regarding the sufficiency of County Court'sexplanation to the jury regarding the purpose of the annotations (see People v Andrews, 267AD2d 1071 [1999], lv denied 94 NY2d 916 [2000]).