| People v Ciccone |
| 2011 NY Slip Op 08842 [90 AD3d 1141] |
| December 8, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AnthonyCiccone, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered September 10, 2009, upon a verdict convicting defendant of the crimes of assault in thefirst degree, assault in the second degree (two counts) and endangering the welfare of a child.
In May 2008, a four-month-old child was brought to the emergency room of a local hospitalbecause he had been bleeding profusely from his nose and mouth and had been unable to breath.An investigation subsequently established that the child had been injured when a baby wipe hadbecome lodged in the child's mouth while being cared for by defendant at his apartment. Becausethe injuries appeared to be life-threatening, the child was transferred to the pediatric intensivecare unit of another hospital, where numerous bruises were noted on the infant's face, mouth andhead. In addition, the child was found to have a significant laceration to his palate and acutefractures on his right and left tibia and right thigh bone.[FN1]
When first questioned about the child's injuries, defendant stated that he was caring for himwhile the mother was asleep in the apartment. He recalled briefly leaving the child unattended togo to the kitchen to get him a bottle. While in the kitchen, defendant heard a [*2]strange sound and, upon returning to the bedroom, found the childchoking on a baby wipe that had become lodged in his mouth. Defendant stated that heimmediately woke the mother and told her to call 911. At that point, defendant recalled trying toremove the wipe from the child's mouth, but inadvertently forcing it so that it became lodged inthe infant's throat. Defendant stated that he was eventually able to remove the wipe from thechild's mouth, and surmised that, in the process, apparently scratched the infant's palate with hisfinger, because the child began to bleed profusely from the mouth and nose. Only after beinginformed that fractures had been found in an examination of the child's legs did defendant tellmedical personnel that he had slipped and fallen twice while he was holding the child andattempting to remove the baby wipe from his mouth.
Because the injuries noted on the child could not have been self-inflicted and, according tomedical authorities, were consistent with those found on a child who had been physically abused,defendant was arrested and charged with assault. The matter was subsequently presented to agrand jury and an indictment was returned charging defendant with assault in the first degree,assault in the second degree (three counts) and endangering the welfare of a child. After a jurytrial, defendant was convicted of assault in the first degree, two counts of assault in the seconddegree and endangering the welfare of a child. He was subsequently sentenced to eight years inprison for his conviction of assault in the first degree and five years in prison for each convictionof assault in the second degree, all to be served consecutively,[FN2]plus periods of postrelease supervision. Defendant now appeals.
Defendant initially contends that these convictions were not supported by legally sufficientevidence. As relevant here, to be convicted of assault in the first degree, it had to be proven thatdefendant used a dangerous instrument on the child, intending to and actually causing the childserious physical injury (see Penal Law § 120.10 [1]).[FN3]In that regard, the People presented evidence not only that the child had been seriously injured,but also that the wipe as allegedly used by defendant on the child was capable of inflicting suchinjury and, as such, constituted a dangerous instrument.[FN4]As for defendant's conviction for assault in the second degree, the People were required to provethat defendant intentionally caused physical injury to a child less than seven years old(see Penal Law § 120.05 [9]). Finally, to establish that defendant endangered thewelfare of the child, competent evidence had to be presented establishing that defendant"knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare ofa child" (Penal Law § 260.10 [1]).[*3]
In challenging the legal sufficiency of these convictions,defendant contends that no direct evidence exists establishing that he intended to injure the childor that he was responsible for forcing the baby wipe into the child's mouth. Initially, we note thatin determining whether defendant's convictions were supported by legally sufficient evidence, wemust "view the evidence in the light most favorable to the People and will not disturb the verdictif the evidence demonstrates a valid line of reasoning and permissible inferences that could lead arational person to the conclusion reached by the jury" (People v Marshall, 65 AD3d 710, 711 [2009], lv denied 13NY3d 940 [2010] [citations omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987];People v Lewis, 83 AD3d1206, 1207 [2011], lv denied 17 NY3d 797 [2011]). This standard of appellatereview applies to all criminal convictions, including those that are based entirely oncircumstantial evidence (see People v Ficarrota, 91 NY2d 244, 248-249 [1997]; People v Harris, 88 AD3d 83, 86[2011], lv granted 17 NY3d 863 [2011]).
Here, the People presented competent evidence establishing that when this child sustainedthese injuries, defendant was charged with his care and was the only person who could have beenresponsible if these injuries were intentionally inflicted. Moreover, the injuries sustained by thischild were substantial and serious and, as previously noted, could not have been self-inflicted bya four-month-old child. In addition, two physicians testified, one of whom is a pediatricradiologist, that the fractures found on the child were not the result of accidental or inadvertentcontact but, instead, were caused, in their opinion, by the child being battered, assaulted andphysically abused. This testimony stood in stark contrast to defendant's belated admission that hehad fallen twice while holding the child when he was trying to remove the wipe from the child'smouth. Simply stated, this evidence, when viewed as an integrated whole, provided a rational aswell as a legal basis for the conclusions reached by the jury as embodied by its verdict (seePeople v Bleakley, 69 NY2d at 495; People v Wright, 81 AD3d 1161, 1163 [2011], lv denied 17NY3d 803 [2011]). In that same vein, we also conclude that each conviction is supported by theweight of the credible evidence presented at trial (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Gratton, 51 AD3d 1219,1220-1221 [2008], lv denied 11 NY3d 736 [2008]).
Defendant also challenges the People's use of rebuttal witnesses to testify to his character andcounter his claim that he would never intentionally harm a child. County Court should not havepermitted any of the character witnesses, including those called by defendant, to testify tospecific incidents of his conduct on this issue and erred in allowing one witness to testify thatdefendant used drugs with her in the presence of her child. However, much of the characterevidence presented by the People at trial represented an appropriate response to defendant'sevidence of his good character and, as offered, tended "to negate the trait in issue" (People vRojas, 97 NY2d 32, 38 [2001]; seePeople v Nicosia, 18 AD3d 673, 673 [2005]; People v Morehouse, 5 AD3d 925, 928 [2004], lv denied 3NY3d 644 [2004]). Also, any error that County Court may have committed in regard to thistestimony was harmless, especially when considered in light of its instruction to the jury that thisevidence "was offered solely for [the jury's] consideration on the question of the reputation fornon-violence and his relationship with children" and that "[the jury could] consider it for thatlimited purpose and none other."
We also note that defendant did not object to County Court's statements to the jury during thevoir dire as to the troubling nature of the crimes set forth in the indictment (see People v Harper, 7 NY3d 882,882-883 [2006]). Moreover, as made, these statements were clearly directed not at defendant, butat the nature of the injuries that were sustained by the child and were designed to prepare the juryfor the difficult and disturbing testimony that would be [*4]presented by the People at trial. More importantly, as given, thesestatements in our view did not result in any prejudice that could be fairly interpreted as deprivingdefendant of a fair trial. And, although County Court, in its introductory remarks to the jury, didnot inform the jury that the indictment was not evidence, the court did provide such aninstruction prior to the jury commencing its deliberations (see People v Davis, 208 AD2d989, 989 [1994], lv denied 84 NY2d 1030 [1995]; see also People v Greaves, 246AD2d 360, 360-361 [1998], affd 94 NY2d 775 [1999]; compare People v Abreu,74 AD2d 876, 877 [1980]). Finally, the majority of defendant's claims regarding prosecutorialmisconduct—which, in our view, was not so pervasive as to deprive defendant of a fairtrial (see People v Demming, 116 AD2d 886, 887-888 [1986], lv denied 67NY2d 941 [1986]; see also People v Dickson, 58 AD3d 1016, 1018 [2009], lvdenied 12 NY3d 852 [2009])—were not preserved by appropriate objection and,therefore, are not subject to appellate review (see CPL 470.05 [2]).
We do agree with defendant that his sentence must be modified because not all of hisconvictions for assault involved separate and distinct acts for which consecutive sentences couldbe imposed. Specifically, in charging defendant with assault in the first degree, the Peoplealleged that he caused serious physical injury to the child by forcing a baby wipe into his mouth.Since defendant's conviction for assault in the second degree under the second count of theindictment was based on an allegation that the child had sustained a laceration to his palate whendefendant forced the wipe into his mouth, it involved the very same act that led to defendant'sconviction for assault in the first degree. Because the People failed to establish that theseoffenses were separate and distinct from each other or were " 'committed by separate and distinctacts' " (People v Munoz, 50 AD3d1316, 1317 [2008], lv denied 10 NY3d 962 [2008], quoting People vGoodband, 291 AD2d 584, 585 [2002]; see Penal Law § 70.25 [2]), thesentences for these two convictions cannot run consecutively to each other and defendant'ssentence to that limited extent must be modified.[FN5]Defendant's other conviction for assault in the second degree (count 3) was based on the fractureof the child's femur, and obviously was the product of a separate and distinct act for which aconsecutive sentence could be and was properly imposed (see People v Munoz, supra).
To the extent not specifically addressed, defendant's remaining contentions have beenreviewed and found to be without merit.
Spain, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the judgment is modified, on thelaw, by directing that defendant's sentences for assault in the first degree under count 1 of theindictment and assault in the second degree under count 2 of the indictment shall runconcurrently rather than consecutively, and, as so modified, affirmed.
Footnote 1: It appears that the child has fullyrecovered from these injuries.
Footnote 2: He received a concurrentone-year sentence on his conviction of endangering the welfare of a child.
Footnote 3: Serious physical injury means"physical injury which creates a substantial risk of death, or which causes death or serious andprotracted disfigurement, protracted impairment of health or protracted loss or impairment of thefunction of any bodily organ" (Penal Law § 10.00 [10]).
Footnote 4: A dangerous instrument is "anyinstrument, article or substance . . . which, under the circumstances in which it isused, attempted to be used or threatened to be used, is readily capable of causing death or otherserious physical injury" (Penal Law § 10.00 [13]).
Footnote 5: Notably, at sentencing thePeople informed County Court that they were not asking for consecutive sentences.