| People v Snyder |
| 2012 NY Slip Op 00430 [91 AD3d 1206] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brenda J.Snyder, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Franklin County (Rogers, J.),rendered July 30, 2001, upon a verdict convicting defendant of the crimes of murder in thesecond degree, assault in the first degree (four counts) and reckless endangerment in the firstdegree (eight counts), and (2) by permission, from an order of said court, entered January 10,2005, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction, without a hearing.
After the January 1996 death of her daughter (born in 1993), defendant was arrested andcharged with, among other things, three counts of murder in the second degree, includingintentional murder, depraved indifference murder, and depraved indifference murder of a personunder 11 years old. She was also charged with attempted intentional murder of her son (born in1992), and multiple counts of both assault in the first degree and reckless endangerment. In 2001,defendant was convicted by jury verdict of depraved indifference murder, assault in the firstdegree (four counts) and reckless endangerment in the first degree (eight counts),[FN1]and was [*2]thereafter sentenced to an aggregate prison term of50 years to life. In May 2004, defendant moved pursuant to CPL 440.10 to vacate the judgmentof conviction. County Court denied that motion without a hearing in January 2005. Defendantnow appeals from the judgment of conviction and, with permission, from the denial of her CPL440.10 motion.
A person is guilty of depraved indifference murder when, "[u]nder circumstances evincing adepraved indifference to human life, he [or she] recklessly engages in conduct which creates agrave risk of death to another person, and thereby causes the death of another person" (Penal Law§ 125.25 [2]). Defendant's convictions of assault in the first degree required proof that,"[u]nder circumstances evincing a depraved indifference to human life, [she] recklesslyengage[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]). Likewise, tosupport defendant's conviction of reckless endangerment in the first degree, the People wererequired to prove that "under circumstances evincing a depraved indifference to human life, [she]recklessly engage[d] in conduct which create[d] a grave risk of death to another person" (PenalLaw § 120.25).
Although defendant advances a variety of challenges to her convictions, her primarychallenge on appeal relates to the legal sufficiency and weight of the evidence.[FN2]She argues that the evidence does not support a finding that she committed any of the actsalleged, that she possessed the necessary mens rea or that she caused injury to either of herchildren. We reject these contentions.
The People's case was based entirely on the theory that defendant attempted to causebreathing problems in both of her children by suffocating them for the purpose of collectinggovernment benefits. To that end, the People presented extensive testimony from the numerouspediatricians, specialists, nurses, emergency personnel and social workers who cared for thechildren or otherwise interacted with defendant and her children from the birth of defendant's sonin 1992 until the death of defendant's daughter in 1996. The mostly circumstantial evidenceestablished that both children were admitted to the hospital—after experiencing difficultybreathing and being rushed to the emergency room—on numerous occasions followingtheir births for what appeared to be apnea episodes. Each episode occurred during daytime hours,defendant was the only person present when the symptoms began and she was the sole source ofinformation as to what occurred. Although numerous tests were performed, the results wereroutinely normal and medical personnel were unable to determine any organic cause for thechildren's identical breathing problems. One such test performed on defendant's daughterrevealed that her apnea originated in the lung area, rather than in the brain, indicating that it wascaused by something blocking her airway. According to various medical witnesses, there were[*3]other indicators that the children's problems were caused bysuffocation, including reports of blood in their noses or mouths and certain recorded informationon heart and respiratory rate monitors, which signified that their lungs were healthy but that theoxygen flow had been interrupted for a period of time.
Medical personnel who came in contact with defendant and her children at the hospitalobserved more than one incident that caused them to suspect that defendant was suffocatingthem. After one such incident, Donald Swartz, the pediatric pulmonologist for defendant's son,directed that defendant not be left alone with the child while he was in the hospital, and heexperienced no further apnea episodes during the remainder of his hospital stay. Swartz thereafterdischarged the son with orders that he not be left alone at home with defendant and madearrangements for nurses to regularly visit the home. When the son was later readmitted to thehospital, defendant and the child's father[FN3]requested that Swartz not be involved in caring for him.
Subsequently, defendant's daughter was referred to Daniel Shannon, a pediatrician atMassachusetts General Hospital, who diagnosed her with a sinus node dysfunction with apossible seizure disorder and recommended surgery to implant a pacemaker.[FN4]Despite such surgery, the daughter's apnea episodes continued and she was admitted to theemergency room several times thereafter with reported seizures. No seizures were everdocumented during her hospital stays and none were actually witnessed by medical personnel.
Ultimately, in January 1996, defendant's daughter was rushed to the local hospital emergencyroom in respiratory and cardiac arrest. She was transferred to another hospital, where she died afew days later. Her death was determined to have resulted from a lack of oxygen and inadequateblood flow to the brain. The chief medical examiner who performed the autopsy on defendant'sdaughter testified that he was unable to rule out suffocation as the cause of death, and that hebelieved that the manner of death was "consistent with a homicide." The People's expert witnesssimilarly testified that, in her opinion, both children's frequent hospitalizations resulted fromsuffocation, which carried a significant risk of death, and that the death of defendant's daughterwas, in fact, caused by suffocation.
Pamela Marshall, an inmate at the Franklin County Jail when defendant was incarceratedthere after her arrest, also testified for the People. According to Marshall, defendant spoke withher about the case on one occasion and told Marshall that she and her husband had been havingfinancial difficulties and decided to try to get disability benefits for her children after learningthat a friend had received such benefits for a child who was having breathing problems. Duringthat conversation, defendant described several incidents—which were consistent with the[*4]testimony of other witnesses—in which she hadattempted to induce such breathing problems in her children. Defendant also told Marshall that,on the day her daughter was taken to the hospital just prior to her death, she had attemptedseveral times to put a pillow over her face in order to cause breathing problems in anticipation ofthe arrival of a home health nurse that day. Defendant stated that she "didn't mean for it to go asfar as it did,"[FN5]but that the nurse who was scheduled to come to the house had arrived late.
In addition, a claims representative for the Supplemental Security Income (hereinafter SSI)program testified regarding defendant's applications for disability benefits on behalf of herchildren based upon alleged lung problems/obstructive apnea, which applications were ultimatelysuccessful. The People attempted to demonstrate a correlation between the timing of variousaspects of the application process—including reviews of entitlement to benefits andpayments made—and the occurrence or "remission" of the children's apnea events in orderto prove that defendant induced their problems at particular times in her effort to obtain ormaintain eligibility for such benefits.
Dapheny Wright, a salesperson for a mobile home company, testified that she firstencountered defendant and her boyfriend in 1995 when they purchased a mobile home. Wrightwas concerned about their ability to secure financing for the purchase, as their income consistedof public assistance and SSI benefits. When Wright asked defendant whether the SSI benefitswere permanent, defendant responded that the benefits were for her daughter, who was disableddue to "respiratory problems and weak blood," that she anticipated the condition to be along-term disability and that the benefits would continue for the rest of the child's life. Wrightfurther testified that defendant and her boyfriend presented themselves at her office on January19, 1996—within days of the death of defendant's daughter—and informed her thatthey had lost their daughter, who was their main source of income, and indicated that they werein danger of losing their home.
"In reviewing the legal sufficiency of a verdict, we must view the evidence in the light mostfavorable to the People, and determine whether there is any valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion reached by the jury. . . and as a matter of law satisfy the proof and burden requirements for everyelement of the crime[s] charged" (People v Somerville, 72 AD3d 1285, 1286 [2010] [internalquotation marks and citations omitted]; see People v Snow, 79 AD3d 1252, 1255 [2010], lv denied16 NY3d 800 [2011]). We readily conclude that the record contains legally sufficient evidencethat defendant repeatedly suffocated her children knowing that she was subjecting them to agrave risk of death and caused them serious physical injury, and that, in doing so, she recklesslycaused the death of her daughter. The element of mens rea—an element of all the chargesupon which defendant was convicted—requires further discussion, as the law has evolvedsubstantially since the date of her [*5]conviction.[FN6]At the time of defendant's conviction, the Court of Appeals had established an objective view ofdepraved indifference relative to the circumstances under which the crime was committed(see generally People v Register, 60 NY2d 270 [1983], cert denied 466 US 953[1984]). Here, the jury was charged, and defendant was convicted, under that view of the law. Ina series of more recent cases (seegenerally People v Suarez, 6 NY3d 202 [2005]; People v Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464[2004]; People v Hafeez, 100 NY2d 253 [2003]), culminating in People v Feingold (7 NY3d 288[2006]), the Court of Appeals clarified depraved indifference as a mens rea element. Defendant'sdirect appeal was pending when this change in the law occurred,[FN7]and so we must decide defendant's legal sufficiency claims in accord with the law as it now exists(see People v Jean-Baptiste, 11NY3d 539, 541-542 [2008]; People v Vasquez, 88 NY2d 561, 573 [1996]; People v George, 43 AD3d 560,562 [2007], affd 11 NY3d 848 [2008]).
Mens rea may be demonstrated by circumstantial evidence (see People v Manos, 73 AD3d1333, 1334 [2010], lv denied 15 NY3d 807 [2010]). In the event of an unintentionalkilling of a single individual, depraved indifference may be established, as relevant here, wherethe " 'defendant—acting with a conscious objective not to kill but to harm—engagesin torture or a brutal, prolonged and ultimately fatal course of conduct against a particularlyvulnerable victim' " (People vTaylor, 15 NY3d 518, 523 [2010], quoting People v Suarez, 6 NY3d at 212; see People v Smith, 41 AD3d 964,966 [2007], lv denied 9 NY3d 881 [2007]). The defendant's actions must "reflect wantoncruelty, brutality or callousness [and be] combined with utter indifference to the life or safety" ofthe victim (People v Varmette, 70AD3d 1167, 1169 [2010], lv denied 14 NY3d 845 [2010] [internal quotation marksand citations omitted]; see People vFord, 43 AD3d 571, 573 [2007], lv denied 9 NY3d 1033 [2008]). The Court ofAppeals has stated that " 'depraved indifference is best understood as an utter disregard for thevalue of human life—a willingness to act not because one intends harm, but because onesimply doesn't care whether grievous harm results or not' " (People v Feingold, 7 NY3d at296, quoting People v Suarez, 6 NY3d at 214). As set forth above, the proof hererevealed that defendant repeatedly suffocated her two helpless children and forced them toundergo unnecessary medical procedures, callously causing repeated injury to each of themwithout regard to the risk of grievous harm posed by her actions, which ultimately resulted in herdaughter's death. Defendant's indifference to the lives and safety of her children was furtherdemonstrated in the testimony describing her behavior on the day that she last suffocated herdaughter; the person whom defendant later described as a "home health nurse" arrived atdefendant's home to find that the child was not breathing, had no pulse, was limp, colorless and"ice cold," and that defendant had not called for help. This individual, a parent monitor, testifiedat trial that although she repeatedly instructed defendant to perform rescue breathing, defendantdid not do so. Instead, [*6]defendant "just [sat] there," tearlessand doing nothing, while the monitor summoned rescue personnel and tended to the child.Defendant's state of apparent unconcern continued at the hospital; while medical personnelattempted to resuscitate her daughter, defendant remained outside the treatment room, calmlyeating snacks.
The evidence revealed that defendant's sole reason for wishing that her children would notdie as a result of her repeated, brutal acts was so that she might continue to torture them, andthereby continue to receive disability benefits. This wish—to be able to indefinitelycontinue brutalizing her children for financial gain—does not and cannot constituteanything but the most " 'utter disregard for the value of human life' " (People v Feingold,7 NY3d at 296, quoting People v Suarez, 6 NY3d at 214) and for her children's lives.Indeed, defendant's wish to continue to profit from her children's pain and suffering was cruellydepraved. Her desire for her children to continue living only to serve her cruel purpose cannotlegally be deemed to constitute even the smallest shred of concern for their lives or safety. Thus,we find that the evidence of depraved indifference is legally sufficient to support defendant'sconvictions (see People v McLain,80 AD3d 992, 996 [2011], lv denied 16 NY3d 897 [2011]; People v Manos,73 AD3d at 1334-1338; People v Varmette, 70 AD3d at 1169-1171; People vFord, 43 AD3d at 572-574).
As to defendant's challenge to the weight of the evidence, where a different verdict would nothave been unreasonable, we view the evidence in a neutral light and, according deference to thejury's credibility determinations, "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" (Peoplev Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]).Having weighed the evidence, as we must, "in light of the elements as charged to the jury withoutobjection by defendant" (People vCarter, 40 AD3d 1310, 1311 [2007], lv denied 9 NY3d 873 [2007]; see People v Johnson, 10 NY3d875, 878 [2008]), "even when the law has changed between the time of trial and the time ofappeal" (People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that her convictions are against theweight of the credible evidence (see People v Register, 60 NY2d at 274-280; People vStrawbridge, 299 AD2d 584, 593-594 [2002], lv denied 99 NY2d 632 [2003];People v Dexheimer, 214 AD2d 898, 901 [1995], lv denied 86 NY2d 872[1995]).
Next, we turn to consider defendant's further procedural and evidentiary challenges.Defendant's contention that she was denied a fair trial because the Franklin County DistrictAttorney's office improperly delegated its prosecutorial authority by allowing several attorneysnot employed by the District Attorney to participate in the proceedings is unpreserved for ourreview, as defendant failed to register any objections to the prosecution team at trial. We alsoreject defendant's assertion that the claimed error—the appearance at trial of the DistrictAttorney of another county and an Assistant Attorney General—falls within one of thenarrow exceptions to the preservation requirement as a matter that affects "the organization of thecourt or the mode of proceedings proscribed by law" (People v Patterson, 39 NY2d 288,295 [1976], affd 432 US 197 [1977]; see People v Agramonte, 87 NY2d 765,769-770 [1996]; People v Thomas, 50 NY2d 467, 471 [1980]; People vBeaudoin, 198 AD2d 610, 611 [1993], lv denied 82 NY2d 922 [1994]). Defendant'sargument that she was denied a fair trial because certain of the People's witnesses were allowedaccess to grand jury minutes and exhibits is also unpreserved. Moreover, to the extent that therewas any error, such error was harmless in light of the overwhelming evidence of defendant's guilt(see People v Brockway, 255 AD2d 988, 988-989 [1998], lv denied 93 NY2d 967[1999]).[*7]
As to defendant's evidentiary objections, we note first thatshe failed to preserve her argument that her constitutional right to confrontation was violated bythe admission into evidence of certain medical records and expert testimony that relied onhearsay, as she did not raise this constitutional objection at trial (see People v Kello, 96NY2d 740, 743-744 [2001]). Such argument is, in any event, without merit. To the extent thatdefendant objected to the admission of such evidence on the ground of relevance orimpermissible hearsay, County Court properly overruled such objections as the evidence waseither "based on facts in the record or personally known to the witness" or fell within awell-recognized exception to the hearsay rule (Hambsch v New York City Tr. Auth., 63NY2d 723, 725-726 [1984]; see CPLR 4518; CPL 60.10; People v Wright, 81 AD3d 1161,1164 [2011], lv denied 17 NY3d 803 [2011]; People v Bruno, 47 AD3d 1064, 1066 [2008], lv denied 10NY3d 809 [2008]). Any remaining evidentiary errors were harmless (see People vCrimmins, 36 NY2d 230, 241-243 [1975]).
Defendant's CPL 440.10 motion to vacate the judgment of conviction on the ground ofineffective assistance of counsel was properly denied without a hearing. A postjudgment motionbrought pursuant to this statute will not necessitate a hearing in every instance, and it is the trialcourt's prerogative to make the preliminary determination of whether such a hearing is necessary(see CPL 440.30 [1], [4] [a]; People v Satterfield, 66 NY2d 796, 799 [1985]).Here, the written submissions on defendant's motion and the massive trial record were sufficientto determine whether counsel's performance was effective (see People v Clarke, 5 AD3d 807, 810 [2004], lv denied 2NY3d 797 [2004]; People v Murray, 300 AD2d 819, 821 [2002], lv denied 99NY2d 617 [2003]), particularly in view of the fact that the judge who denied the motion presidedat trial and witnessed defense counsel's performance firsthand (see People v Morehouse, 5 AD3d925, 926 [2004], lv denied 3 NY3d 644 [2004]; People v Turcotte, 252AD2d 818, 820 [1998], lv denied 92 NY2d 1054 [1999]).
Although defendant now points to numerous claimed trial errors, including counsel'sdecisions not to call certain medical experts to testify and not to present any medical experttestimony in her defense, defendant failed to meet her burden to " 'demonstrate the absence ofstrategic or other legitimate explanations' " for counsel's alleged deficiencies at trial (People v Baker, 14 NY3d 266,270-271 [2010], quoting People v Rivera, 71 NY2d 705, 709 [1988]; accord People v Henry, 81 AD3d1165, 1165 [2011]). Counsel's affidavit amply demonstrates that he considered presentingthe testimony of a myriad of experts and made reasonable strategic decisions not to do so on thebasis that he felt it would be damaging to defendant's case. Viewed objectively and without thebenefit of hindsight, the record "reveal[s] the existence of a trial strategy that might well havebeen pursued by a reasonably competent attorney" (People v Satterfield, 66 NY2d at 799;see People v Caban, 5 NY3d143, 152 [2005]; People v Benevento, 91 NY2d 708, 714-715 [1998]; People vRivera, 71 NY2d at 709; People vMiller, 13 AD3d 890, 892 [2004]).
Moreover, defense counsel engaged in pointed and thorough cross-examination of thePeople's witnesses, showed a complete understanding of and the ability to navigate both medicaland technical information, raised proper objections and offered articulate opening and closingarguments, among other things. In addition, defense counsel succeeded in having County Courtcharge the jury with lesser included offenses of some of the crimes charged in the indictment and[*8]in securing an acquittal on several of the initialcharges.[FN8]Even if counsel's representation was less than perfect, " 'the evidence, the law, and thecircumstances of [the] case, viewed in totality and as of the time of the representation, reveal thatthe attorney provided meaningful representation' " (People v Henry, 95 NY2d 563, 565[2000], quoting People v Baldi, 54 NY2d 137, 147 [1981]; see People vBenevento, 91 NY2d at 714-715; People v Battease, 74 AD3d 1571, 1575-1576 [2010], lvdenied 15 NY3d 849 [2010]).
Defendant's contention that her sentence is harsh or excessive is unavailing. Even ifdefendant had preserved her claim that she was punished for asserting her right to trial by theimposition of a longer sentence than that offered during plea negotiations (see People v Ward, 10 AD3d 805,808 [2004], lv denied 4 NY3d 768 [2005]), the record contains no evidence of retaliation(see People v Molina, 73 AD3d1292, 1293 [2010], lv denied 15 NY3d 807 [2010]; compare People v Nelson, 68 AD3d1252, 1256 [2009]). Contrary to defendant's contention, the sentencing minutes reveal thatCounty Court clearly specified that all of the sentences—including that for murder in thesecond degree—were to run consecutively, with the exception of one recklessendangerment conviction. Consecutive sentences were properly imposed as "the acts involved,though part of a continuous course of conduct, can be separated into separate and distinct events"(People v Williams, 51 AD3d1141, 1145 [2008], lvs denied 10 NY3d 959, 965 [2008] [internal quotation marksand citations omitted]; see People v Salcedo, 92 NY2d 1019, 1021 [1998]). We find noabuse of discretion or extraordinary circumstances warranting modification in view of the youthand vulnerability of her victims and the callous nature of her violent crimes (see People vSmith, 41 AD3d at 967).
Peters, J.P., and Spain, J., concur.
Stein, J. (concurring). We agree with the majority's determination that defendant'sconvictions should be affirmed. However, we write separately to express our opinion that thelegal sufficiency of the evidence supporting her convictions should be reviewed in light of thelaw as it existed at the time of trial. In our view, defendant's motion for a trial order of dismissalrelating to legal sufficiency "was based on the perceived inadequacy of the proof, not on aninterpretation of an element of the offense" (People v Ford, 11 NY3d 875, 879 [2008]). Because there was noobjection to the jury charge with respect to depraved indifference, "the legal sufficiency ofdefendant's conviction must be viewed in light of the court's charge as given without exception"(id. at 878; compare People vJean-Baptiste, 11 NY3d 539, 544 [2008]). Under these circumstances, and based on ourreview of the record in that light, we would uphold the verdict against defendant.
Even if we were to agree with the majority's determination that the evidence should bereviewed in accordance with the law as it now exists pursuant to People v Feingold (7 NY3d 288[2006]), and find a valid line of reasoning and permissible inferences that could lead a rational[*9]person to the conclusion reached by the jury on the basis ofthe evidence adduced at trial under such analysis, we are of the view that defendant would beentitled to a new trial (see People v Hill, 85 NY2d 256, 264 [1995]). While the jury wasproperly charged with the definition of depraved indifference as it was understood at the time ofdefendant's trial, as a result of the unfortunate, lengthy delay in perfecting the instant appeal anda clear change in the law since her conviction, County Court's instruction to the jury did notcomport with the now current law in that it did not include the mens rea element. Although wemay opine that the evidence would be legally sufficient to convict defendant underPeople v Feingold (supra), we cannot determine whether the jury would havefound her guilty under the current state of the law (see generally People v Hill, 85 NY2dat 264), and we may not supplant the role of the jury in making such finding in the first instance.To conclude otherwise effectively convicts defendant in contravention of her fundamental rightto be tried by a jury.
McCarthy, J., concurs. Ordered that the judgment and order are affirmed.
Footnote 1: Defendant's son was the victimof two of the convictions of assault and three of the reckless endangerment convictions; herdaughter was the victim of the remaining convictions.
Footnote 2: Defendant's challenge to theconstitutionality of the depraved indifference statute as impermissibly vague is unpreservedbecause she failed to raise such challenge before County Court (see People v Riddick, 34 AD3d923, 925 [2006], lv denied 9 NY3d 868 [2007]). In any event, this argument lacksmerit (see People v Suarez, 6 NY3d202, 213-214 [2005]; People v Riddick, 34 AD3d at 925).
Footnote 3: This person was also referred toas defendant's boyfriend or husband.
Footnote 4: This recommendation was indirect conflict with the opinion of Thomas Truman, the director of the pediatric intensive careunit of Massachusetts General Hospital, who also had an opportunity to examine defendant'sdaughter prior to her pacemaker surgery and opined that her life threatening events wereoccurring because she was being suffocated.
Footnote 5: Defendant also admitted to apolice investigator that she had attempted to smother her daughter once shortly after her birth.She was not charged with any crime occurring on that earlier date.
Footnote 6: Incredibly, and regrettably,although the notice of appeal from the judgment of conviction was timely filed in 2001 and thenotice of appeal from the order denying defendant's CPL 440.10 motion was also timely filed in2005, this appeal was not perfected until 2011—10 years after defendant's conviction.
Footnote 7: This Court has previously fixedPeople v Payne (3 NY3d 266[2004]) as the point at which the new rule came into effect (see People v Baptiste, 51 AD3d 184, 192-195 [2008], lvdenied 10 NY3d 932 [2008]).
Footnote 8: Some of defendant's convictionswere, in fact, for such lesser included offenses. Defendant was also acquitted of attemptedmurder in the second degree and five of the counts of assault in the first degree set forth in theindictment.