| People v Thomas |
| 2012 NY Slip Op 02128 [93 AD3d 1019] |
| March 22, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Adrian P.Thomas, Appellant. |
—[*1] Richard J. McNally, District Attorney, Troy (Gordon Eddy of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered November 12, 2009, upon a verdict convicting defendant of the crime of murder in thesecond degree.
On Sunday, September 21, 2008, defendant's wife, Wilhemina Hicks, woke around 9:00 a.m.in their two-bedroom apartment in the City of Troy, Rensselaer County to find that theirfour-month-old son Matthew was unresponsive and not breathing regularly; she awokedefendant, 911 was called and emergency personnel responded. Upon arrival at a local hospitalwith Hicks, Matthew was in critical condition, in severe respiratory distress, unconscious andnonresponsive, and placed on a ventilator and antibiotics; blood tests later showed that he hadstreptococcal pneumonia, a bacterial infection. The infant was transferred to the pediatricintensive care unit of Albany Medical Center Hospital (hereinafter AMCH), where he arrivedunresponsive, with very little brain activity or neurological functions, and was not adequatelybreathing on his own. A CAT scan disclosed what treating physicians determined to be subduralhematomas on both sides of his brain consistent with severe head trauma resulting from rapidacceleration and then sudden deceleration of the head, causing the brain to move back and forthinside the skull. Matthew also exhibited signs of sepsis, an overwhelming systemic infection.Shortly after his arrival at AMCH, despite extensive medical intervention, it was determined thatMatthew was brain dead; two days later he was removed from life support and died.[*2]
Defendant remained at the apartment with the couple's sixother children, all under nine years old, including Matthew's twin brother. That evening City ofTroy police detectives accompanied Rensselaer County Child Protective Services (hereinafterCPS) caseworkers to the apartment where they briefly questioned defendant and CPS removedthe children, leaving defendant alone. Interviewed by detectives hours later and again the nextevening at length, defendant ultimately confessed that he had thrown Matthew onto a mattressand box spring located—without a bedframe—directly on the floor in defendant'sbedroom, three times in the four days preceding the 911 call. Defendant also admitted that he hadunintentionally hit the infant's head against the side of his crib several times, including after the911 call. The police interviews were recorded on DVDs, which captured defendant,self-described at 500 pounds, demonstrating how he had forcefully thrown the infant to themattress. Defendant signed two statements that reflected essential parts of his admissions duringeach interview. It was also established that Matthew, who weighed just 15 pounds and had beenborn two months premature, had been ill and experiencing fevers, diarrhea and vomiting in thedays preceding his death.
Defendant was indicted on one count of depraved indifference murder and, at trial, Hickstestified, denying harming Matthew. A plethora of highly credentialed medical subspecialistswere called by both sides, offering two sharply conflicting opinions regarding the primary causeof death. The People's experts, including the pediatric critical care supervisor and pediatricneurosurgeon who treated Matthew at AMCH and the forensic pathologist who performed theautopsy, all testified that the cause of death was the subdural hematomas or brain swelling andbleeding caused by severe blunt force head trauma, and that sepsis and pneumonia weresecondary contributing factors, but not the sole cause. Defendant's experts, by contrast,concluded that sepsis leading to meningitis and septic shock and not head trauma was the causeof death. Whereas the pediatric critical care physician who treated Matthew opined thatdefendant's admitted actions in throwing a four month old with considerable force onto amattress and box spring—the surface of which was located 17 inches above thefloor—several times in four days is the type of rapid acceleration-deceleration that couldcause the severe head trauma and subdural hematomas found in Matthew, the neuropathologistwho testified on behalf of the defense opined that such an injury would "probably not" resultfrom such actions. Defendant, in his trial testimony, disavowed his confession as coerced andfalse, and denied throwing Matthew or hitting his head against the crib.
After a jury trial, at which the jury viewed a redacted video version of most of defendant'sinterviews with police, defendant was convicted of depraved indifference murder and sentencedto a prison term of 25 years to life. Defendant now appeals.
Initially, defendant argues that his oral and written statements to police should have beensuppressed on the grounds that they were involuntarily obtained and the product of coercivecustodial interrogation methods, which included false promises, misrepresentations and threats.After a hearing, County Court denied defendant's suppression motion finding that the statementshad been voluntarily made in a noncustodial setting in which police did not employimpermissible coercive tactics.
The voluntariness of defendant's statements is evaluated by looking at the totality of thecircumstances in which they were obtained (see People v Anderson, 42 NY2d 35, 38[1977]; see also People v Mateo, 2 NY3d 383, 413-414 [2004], cert denied 542US 946 [2004]; People v Pouliot, 64AD3d 1043, 1044 [2009], lv denied 13 NY3d 838 [2009]), guided by the axiom thatdeceptive police strategies in securing a confession "need not result in [a finding of] [*3]involuntariness without some showing that the deception was sofundamentally unfair as to deny due process or that a promise or threat was made that couldinduce a false confession" (People v Tarsia, 50 NY2d 1, 11 [1980] [emphasisadded; citations omitted]; see People v Mateo, 2 NY2d at 413; People v Tankleff,84 NY2d 992, 994 [1994]; People vMunck, 92 AD3d 63, 68 [2011]; People v Dishaw, 30 AD3d 689, 690 [2006], lv denied 7NY3d 787 [2006]; see also CPL 60.45 [2] [b] [i]). Upon our review of the unredactedrecorded interviews and the Huntley testimony, we find that defendant—who didnot testify at the hearing—voluntarily confessed during noncustodial interviews in whichpolice employed permissible strategies aimed at eliciting the truth of what had occurred leadingup to Matthew's death.
According to the police officers who testified, defendant was interviewed by police on twoseparate occasions: for about two hours beginning around midnight on Sunday, September 21,2008, and the next day, Monday, for approximately seven hours—from around 6:00 p.m.until 1:00 a.m. on Tuesday, when he was arrested. On Sunday, after the other children wereremoved by CPS, the officers told defendant that they would be in touch and left him alone.Hours later, around midnight, Detectives Adam Mason and Ronald Fountain, who had been toAMCH, returned to defendant's apartment; he was awake and agreed to accompany them to thepolice station to discuss the incident. At the outset of the first interview, Mason read defendanteach individual Miranda warning, some of which he explained at defendant's request, andhe was advised that he was not under arrest and could stop questioning at any time; defendantindicated that he understood, signing a waiver after they had him read the document aloud toascertain his reading ability. Defendant was questioned by Mason and Fountain for two hours inan unlocked interview room, during which he was apprised that Matthew was not expected tolive and that doctors suspected that Matthew had been slammed into something,[FN1]and they suggested, among other things, that someone might have bumped the infant's headagainst the crib. Defendant denied any wrongdoing or knowledge of anyone harming Matthew,and he reviewed and signed a one-page witness statement to that effect; officers indicated thatthey would want to speak with him again the next day, and defendant agreed. When defendantexpressed suicidal thoughts, i.e., that he might jump off a bridge if Matthew were to die, he wasimmediately offered an opportunity to speak with a counselor which, after somediscussion,[FN2]he accepted, and he was then transported to the mental health unit of a local hospital around 2:00a.m. (see Mental Hygiene Law § 9.41).
After about 15 hours of mental health observation—a significant break in policequestioning—it was determined that defendant was not a danger to himself and he wasdischarged around 5:45 p.m. on Monday; upon his release, he asked the discharge nurse if itwould be okay to wait there for the detectives who would be coming to speak with him,supporting the conclusion that he wanted to speak with them. The testimony and records of that[*4]evaluation demonstrate that defendant was somewhatdepressed, preoccupied and anxious, but do not suggest that he was incapable of makingvoluntary and knowing choices, such as whether to speak with police, or that he was unable tofully understand and invoke his rights.
As defendant exited the mental health unit, Mason, accompanied by another detective,approached and defendant agreed to go back with them to the station for questioning. Defendantwas transported and placed in the same unlocked interview room at approximately 6:00 p.m.where he was again advised of and waived his Miranda rights—after indicating heunderstood them—and he was told he was not under arrest and could stop questioning atany time; he agreed to answer questions. Mason continued with investigatory questions centeredon the cause of Matthew's condition, exploring a vast array of scenarios over the next six hourswhich defendant denied, including throwing Matthew or causing him injury. Mason'snonthreatening, nonhostile strategy focused on gaining defendant's trust and assuring him that hebelieved that whatever had caused Matthew's injuries had been accidental; Mason encourageddefendant to disclose the truth about what had occurred in order to assist the doctors in savingMatthew's life, although Mason had been advised at that point that Matthew would not survive.Defendant signed the first part of his second statement, consisting of six pages in which he madeadmissions of how he might have accidentally caused the injuries.[FN3]Thereafter, another detective briefly entered the interview room and challenged defendant in araised voice that his account was not consistent with the X rays and the doctors' opinions. Heaccused defendant of slamming him against something and of lying; defendant again denied anywrongdoing. The detective exited and Mason responded with the ruse that he felt betrayed bydefendant's dishonesty and that he was defendant's last ally; Mason pressed defendant moreforcefully for the truth, suggesting possible scenarios, including that he threw the infant,demonstrating how this might have occurred. This was the turning point of the interview.
Defendant then admitted in increasing detail having thrown the child in frustration onto thebed forcefully, three times, in the four days preceding the 911 call, after he had arguments withHicks[FN4]over his lack of a job; defendant demonstrated how he had done so using Mason's briefcasebinder, which he ultimately raised above his shoulders and slammed to the ground withconsiderable force. After a break during which he was left alone, defendant confirmed that thisaccount of repeatedly throwing the infant on the bed was accurate; four pages were added to thesecond statement summarizing these admissions, and he reviewed it by himself and signed it.[*5]
Initially, the Huntley transcript and recordedinterviews fully support County Court's factual determination that defendant voluntarilyaccompanied the officers to the station for questioning on both occasions and waived hisMiranda rights each time. No questioning occurred outside the interview room, and thequestioning was (until the last segment of the second interview) investigatory; defendant'sstatements were the product of permissible police tactics and were not coerced, and defendantwas not in custody, as a reasonable person in his position, innocent of any wrongdoing, wouldhave believed that he or she was free to leave (see People v Paulman, 5 NY3d 122, 129 [2005]). The videoconfirms that defendant was never—at any time—handcuffed or restrained, friskedor placed under arrest, physically or verbally abused, threatened or mistreated; he was not told hehad to remain or prevented from leaving. He was repeatedly offered food, beverages andbathroom breaks, which he declined, and his numerous requests for cigarettes were honored.Defendant, who retained his cell phone, never asked to make a phone call, for an attorney, toleave, to end questioning or take a break, to go home or to the hospital, or to sleep or rest. Theinterview room was a relatively bare room with two or three chairs and a small table; the secondinterview consisted of defendant sitting in a chair, while a seated Mason questioned him mostlyin a calm, often friendly and supportive manner; when defendant became upset and cried a fewtimes, Mason comforted him. He was left alone in the room many times, did not object to orresist the ongoing questioning or appear anxious to leave or afraid of police, and remainedcooperative, alert and eager to eliminate himself as a potential perpetrator; he did not appear tobe either overly fatigued or particularly distraught beyond a few brief episodes of crying.
While defendant was likely not free to leave once he admitted repeatedly throwing Matthew,police had probable cause to continue to detain him and were not required to repeatMiranda warnings, given his valid waiver of those rights at the outset of that interview(see People v Davis, 72 AD3d1206, 1207-1208 [2010], lv denied 15 NY3d 803 [2010]; People v Westervelt, 47 AD3d969, 972 [2008], lv denied 10 NY3d 818 [2008]; People v Maddox, 31 AD3d 970, 973-974 [2006], lv denied7 NY3d 868 [2006]). Thus, his confession was likewise not the product of an illegal arrest. Whiledefendant focuses on the length of the interviews to argue that he was in custody the entire time,we disagree, as "[e]ven an interview of extended duration at a police station is not necessarily acustodial interrogation" (People v Centano, 153 AD2d 494, 495 [1989], affd 76NY2d 837 [1990]; see People vHernandez, 25 AD3d 377, 378 [2006], lv denied 6 NY3d 834 [2006]).Considering all of the relevant factors (see People v Johnston, 273 AD2d 514, 515[2000], lv denied 95 NY2d 935 [2000]), using a reasonable person standard (seePeople v Paulman, 5 NY3d at 129), the record supports the finding that defendant was not incustody until he incriminated himself (see People v Pouliot, 64 AD3d at 1046). As theMiranda safeguards were knowingly and voluntarily waived, no violation of defendant'srights occurred and his statements were admissible (see People v Culver, 69 AD3d 976, 977 [2010]).
We reject defendant's claim that questioning should have ceased on the premise that heinvoked his right to counsel during the second interview (see People v West, 81 NY2d370, 373-374 [1993]). A review of the interview itself fully supports County Court's conclusionthat defendant's inquiry regarding whether he would need an attorney referred to a pendingFamily Court matter and not to the present matter. Defendant was not yet in custody (seeid.), and his inquiry did not constitute the "unequivocal invocation" required for that right toattach, so as to compel an end to further questioning in the absence of an attorney, because "aquery as to whether counsel ought to be obtained will not suffice" (People v Mitchell, 2 NY3d 272,276 [2004], citing People v Hicks, 69 NY2d 969, 970 [1987]; see People vCulver, 69 AD3d at 977-[*6]978). Thus, defendant was notentitled to suppression on this ground (see People v Mayo, 19 AD3d 710, 711 [2005]).
On the issue of the voluntariness of defendant's statements and his extensive claims ofcoercive police tactics, promises and threats, looking at all of the foregoing circumstances underwhich they were obtained (see People v Mateo, 2 NY3d at 413), we agree that the Peoplesatisfied their burden of demonstrating beyond a reasonable doubt that his statements werevoluntary (see People v Rosa, 65 NY2d 380, 386 [1985]).[FN5]The circumstances and atmosphere of the interviews fail to demonstrate involuntariness. Whilethe interviews were lengthy, two hours and seven hours, a factor on which defendant places greatemphasis, they were separated by a 15-hour break in questioning during which defendant had abed and food and ample opportunities to rest, sleep, make phone calls, eat, contemplate andconsult help. While defendant argues that the proof established that he was awake almost 40hours, i.e., from the Sunday 9:00 a.m. 911 call until his Tuesday 1:00 a.m. arrest, with less thantwo hours of sleep at the mental health unit, the suppression testimony did not support thatconclusion.[FN6]
More importantly, the recorded interviews simply do not support the conclusion thatdefendant was unduly fatigued or sleepy, or that he was physically or psychologicallyoverwhelmed (contrast People v Anderson, 42 NY2d at 39-40 [the defendant interrogatedwithout advisement of his rights by eight or nine officers operating in relay teams for 19continuous hours and deprived of food, shaken awake when he dozed or nodded off, and was[*7]awake 30 hours without sleep by the time he confessed]).While lack of sleep or nourishment and the duration of station house interviews are certainlysignificant factors to be considered in evaluating voluntariness (id. at 40), on the recordbefore us, "[w]ithout more, the length of time involved did not render the confession[ ] obtainedduring that period inadmissible" (People v Tarsia, 50 NY2d at 12-13 [test and interviewlasted 11 hours]).
Also contrary to defendant's vehement claims, the strategies and tactics employed by theofficers during these interviews were not of the character as to induce a false confession and werenot so deceptive that they were fundamentally unfair and deprived him of due process (seeid. at 11). The officers' repeated misrepresentation that defendant's truthfulness might enabledoctors to effectively treat Matthew did not render his statements involuntary, because appealingto his parental concerns did not create a substantial risk that he might falsely incriminate himself(see id.; People v Dishaw, 30 AD3d at 690-691; People v Henderson, 4 AD3d 616,617 [2004], lv denied 2 NY3d 800 [2004]). Indeed, common sense dictates the oppositeconclusion, i.e., that parents, aware of their child's life threatening predicament, wouldaccurately disclose any information that might enable doctors to save their child.
Likewise, Mason's persistent assurances, including that he believed that it had been anaccident and that defendant would not be arrested or go to jail at that time (based uponinformation then available to police that did not yet connect defendant to this crime), were notimproper promises of leniency that would induce a false confession (see People v Lyons, 4 AD3d 549,552 [2004]; People v Richardson, 202 AD2d 958, 958-959 [1994], lv denied 83NY2d 914 [1994]). Indeed, defendant had been advised that any admission to criminal conductcould be used against him in court; when defendant asked if he would be criminally prosecuted,Mason told him that he did not know and no promises could be made, but it would not happen"right now," which was true as he had not yet confessed.
Further, defendant's eventual confession that he had slammed the infant on the bed on threeseparate days in frustration, decidedly not accidental conduct, belies his claim that he succumbedto Mason's pressure and suggestions to attribute the infant's condition to accidental causes. Alsountrue is that threats to arrest Hicks coerced defendant's confession. When defendant said hewould "take the fall" for her to keep her out of jail, he was told he could not do so and shouldinstead tell what he knew. The focus on Hicks' potential culpability was reasonable and did notoverbear his will or coerce his subsequent confession some 19 hours later, or render itinvoluntary (see People v Lyons, 4 AD3d at 552; cf. People v Keene, 148 AD2d977 [1989]). While we adhere to the constitutionally-mandated "steadfast refusal to countenanceconfessions obtained by [impermissibly] coercive means" (People v Tarsia, 50 NY2d at10), the record fully supports County Court's finding that defendant's statements were voluntaryand admissible.
Next, we find the jury's verdict convicting defendant of depraved indifference murder of achild pursuant to Penal Law § 125.25 (4) is supported by legally sufficient evidence andnot against the weight of the credible evidence (see People v Bleakley, 69 NY2d 490, 495[1987]). Viewing the evidence in the light most favorable to the prosecution, as we must in ourlegal sufficiency inquiry (see People v Contes, 60 NY2d 620, 621 [1983]), we concludethat the evidence, including defendant's recorded confession and the medical testimony, provedthat defendant acted with the requisite mens rea of depraved indifference and established his guiltof depraved indifference murder of a child (see People v Feingold, 7 NY3d 288, 294 [2006]). The facts of thiscase fall within the [*8]limited class of one-on-one killings thatstill satisfy the depraved indifference standard (see People v Suarez, 6 NY3d 202, 210 [2005]; People v Manos, 73 AD3d 1333,1334 [2010], lv denied 15 NY3d 807 [2010]; People v Varmette, 70 AD3d 1167, 1169 [2010], lv denied14 NY3d 845 [2010]; People vFord, 43 AD3d 571, 573 [2007], lv denied 9 NY3d 1033 [2008]). Depravedindifference may be demonstrated by circumstantial evidence (see People v Snyder, 91 AD3d1206, 1211 [2012]), and defendant's actions here fall within one of the recognized rarefactual patterns in which the unintentional killing of a single person constitutes depravedindifference murder, in that defendant " 'acting with a conscious objective not to kill but toharm—engage[d] in torture or[FN7]a brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerable victim'" (People v Taylor, 15 NY3d518, 523 [2010], quoting People v Suarez, 6 NY3d at 212).
His admitted conduct in repeatedly forcefully throwing his premature infant over the courseof four days reflects just such depraved indifference, in that he acted with "an utter disregard forthe value of human life" (People v Suarez, 6 NY3d at 214). Defendant was aware thatMatthew had been sick during this ongoing brutality. His acts, born of anger and frustration,against a tiny, helpless infant behind closed doors, when he was responsible for his care, reflected"wanton cruelty, brutality or callousness directed against a particularly vulnerable victim,combined with utter indifference to the life or safety of the helpless target" (id. at 213;see People v Snyder, 91 AD3d at 1211; People v Manos, 73 AD3d at1334-1336). The People's medical testimony established that Matthew had sustained severe headtrauma, causing his death, and that defendant's admitted conduct was capable of producing hiscatastrophic injuries. Defendant inflicted injury, ignored signs that the child was in distress (bydefendant's account) and allowed him to slowly deteriorate, prolonging his suffering, until Hicksdiscovered him unresponsive, evincing depraved indifference (see People v Suarez, 6NY3d at 212; People v Manos, 73 AD3d at 1337-1338; People v Varmette, 70AD3d at 1171).
While defendant also argues that the evidence did not establish that he acted recklessly, westrongly disagree (see Penal Law § 15.05 [3]; § 125.25 [4]). In light of themedical testimony of the premature infant's extensive fatal injuries and the degree of forcerequired to inflict them and defendant's admissions, the jury reasonably concluded that defendant,aware of an obvious risk of death or serious physical injury, acted recklessly (see People vVarmette, 70 AD3d at 1169; Peoplev Heslop, 48 AD3d 190, 193 [2007], lv denied 10 NY3d 935 [2008]; Peoplev Ford, 43 AD3d at 573; People vSmith, 41 AD3d 964, 966 [2007], lv denied 9 NY3d 881 [2007]; People vMaddox, 31 AD3d at 972). Further, we reject defendant's claim that his actions bespoke "anintentional [killing] or no other" (People v Suarez, 6 NY3d at 215 [internal quotationmarks and citation omitted]) as unsupported by the evidence.
Turning to defendant's extensive challenge to the weight of the evidence, while a differentfinding would not have been unreasonable—had the jury credited either the opinions of thedefense's medical experts that Matthew died of sepsis infection or defendant's testimony that hisconfession was false and had been coerced—we cannot conclude that the verdict wascontrary [*9]to the weight of the credible evidence (see Peoplev Bleakley, 69 NY2d at 495). Weighing the relative probative force of the conflictingtestimony, particularly the sharply divergent medical opinions on the cause of death anddefendant's testimony repudiating his confession which contradicted that of the interviewingdetective, and considering the relative strength of the inferences to be drawn from that conflictingtestimony, we conclude that the jury gave the evidence the weight it should be accorded (seeid.; see also People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Mateo, 2 NY3d at 414-415).In so finding, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses,hear the testimony and observe demeanor" (People v Bleakley, 69 NY2d at 495).
We have reviewed the extensive, conflicting medical testimony offered by the opposingmedical experts—all highly experienced and credentialed subspecialists in their relevantfields—regarding the cause of death (head trauma versus systemic infection) and whetherdefendant's confessed actions could have produced serious head injuries. Notably, the juryobserved the experts' testimony firsthand, including extensive and probing cross-examinationchallenging the bases for their conclusions, and we "cannot assign error in the trier of factcrediting the People's experts over that of defendant's experts" (People v Strawbridge,299 AD2d 584, 593 [2002], lv denied 99 NY2d 632 [2003]). All of the experts offeredcompelling testimony, and the jury's task was difficult. However, the defense experts were not, asa factual matter, more qualified, persuasive or credible, and we cannot say that the jury erred innot finding their testimony more believable or persuasive. As for defendant's testimony denyingthrowing Matthew and disavowing his confession to police as false and coerced, the jury viewedthe confession and was charged to evaluate witness credibility and the voluntariness of hisstatement, and we discern no basis upon which to overrule its implicit determination not to creditdefendant's testimony or the defense's efforts to undermine his confession.
Next, we find no error in County Court's ruling, after a Frye hearing, denyingdefendant's request to permit expert testimony from a social psychologist on police interrogationtactics and false confessions. "The admissibility and bounds of expert testimony are addressedprimarily to the sound discretion of the trial court, . . . [which] in the first instance[must] determine when jurors are able to draw conclusions from the evidence based on theirday-to-day experience, their common observation and their knowledge, and when they would bebenefited by the specialized knowledge of an expert witness" (People v Cronin, 60 NY2d430, 433 [1983] [citation omitted]). "The trial court's decision will not be disturbed absent ashowing of serious mistake, error of law or abuse of discretion" (People v Fish, 235AD2d 578, 580 [1997], lv denied 89 NY2d 1092 [1997] [citation omitted]; see People v LeGrand, 8 NY3d449, 456-459 [2007]).
The record, including the hearing testimony of the People's expert, a law school professorexpressly credited by County Court, fully supports the court's ruling that the psychologist'sproffered testimony neither concerned a subject matter outside of the ken of the average juror,nor had the principles upon which the psychologist relied been established as accepted within therelevant scientific community (see People v LeGrand, 8 NY3d at 455-457; People vWernick, 89 NY2d 111, 115 [1996]; People v Wesley, 83 NY2d 417, 422 [1994];People v Taylor, 75 NY2d 277, 286-288 [1990]; People v Shepard, 259 AD2d775, 777 [1999], lv denied 93 NY2d 979 [1999]). The court determined that currentresearch fails to establish either a consensus connecting specific interrogation techniques to theoccurrence of false confessions or a reliable basis for distinguishing false confessions fromtruthful ones. We agree with the court that the jury—having watched the videotapedinterviews and defendant's trial [*10]testimony explaining why hehad confessed falsely, as well as the defense's vigorous cross-examination of the interviewingofficers, which fully exposed the tactics employed—was "perfectly capable of assessingwhether it believes that the [d]efendant's statements were true and accurate, or whether they werefalsely made as a result of police tactics and coercion." Indeed, the court noted that the jurywould be charged on voluntariness and the factors to evaluate in determining whether theconfession was the result of undue pressure or improper conduct (see CJI2d[NY]Confession; CPL 60.45, 710.70 [3]), and the court in fact provided an expanded charge on thismatter. Given the foregoing, we discern no abuse of discretion or error in the court's ruling.
Finally, defendant's remaining contentions for reversal similarly lack merit, including hisclaim that County Court violated the principles governing juror note taking and responses tojuror requests for readbacks of the charge. We perceive no abuse of discretion in the courtallowing jurors to take notes in this lengthy and difficult trial, and find that it gave appropriateand repeated cautionary instructions (see People v Hues, 92 NY2d 413, 419 [1998];People v Strasser, 249 AD2d 781, 782 [1998], lv denied 91 NY2d 1013 [1998];see also 22 NYCRR 220.10 [c]).[FN8]The court responded meaningfully to the jury's numerous requests for readbacks and queries(see People v Steinberg, 79 NY2d 673, 684 [1992]; CPL 310.30), including rereadingportions of the original charge (seePeople v Santi, 3 NY3d 234, 248-249 [2004]). Obliging jury requests to repeat portionsof the charge or to speak more slowly was not tantamount to improperly giving the jury a copy ofa statute or selected portions of the written charge (see People v Tucker, 77 NY2d 861,862-863 [1991]; People v Strasser, 249 AD2d at 782-783; cf. People v Johnson,81 NY2d 980, 981-982 [1993], affg 181 AD2d 103 [1992]; People v Owens, 69NY2d 585, 590-591 [1987]).
Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Although doctors at the Troyhospital initially reported that Matthew had a skull fracture, doctors at AMCH later ruled thatout.
Footnote 2: Defendant himself thereaftercontinued to initiate further conversation about what may have caused Matthew's injuries andwhat transpired in the days leading up to the 911 call, appearing eager to continue speakingdespite those suicidal thoughts.
Footnote 3: These admissions included that10 to 15 days earlier he had accidentally dropped Matthew in his crib, causing his head to hit theside of the crib; that the day before the 911 call, he had laid back in bed where Matthew waslaying, and accidentally struck his head against Matthew's head, which caused breathingproblems that persisted until the following morning when Hicks found him unresponsive; andthat in the ensuing panic after the 911 call, he had again accidentally dropped Matthew into hiscrib, causing him to hit his head hard against the crib.
Footnote 4: Defendant never implicatedHicks or suggested that she knew Matthew had been injured.
Footnote 5: Defendant's claim thatsuppression should have been granted because his confession was proven false by the defense'smedical testimony at trial is fundamentally flawed. First, defendant cannot rely on trialtestimony to establish entitlement to suppression (see People v Millan, 69 NY2d 514,518 n 4 [1987]). Second, even if the jury had credited his trial experts' opinions that Matthewdied of infection and not head trauma, this would not disprove defendant's admitted acts ofthrowing him on the bed.
Footnote 6: The suppression testimony didnot establish that defendant was deprived of sleep. The evidence shows that defendant slept forabout one hour and 45 minutes at the mental health unit, and was checked on frequently, but didnot account for all of his time there. It did not establish that any requests to sleep more weredenied or that he was overly fatigued or emotionally distraught. Further, defendant hadopportunities to sleep, including (1) after the Sunday 9:00 a.m. 911 call until the arrival of CPS at6:00 p.m. (nine hours), (2) after the children were removed at approximately 7:00 p.m. until thedetectives returned at midnight (five hours), and (3) after his Monday 2:00 a.m. arrival at thehospital and his admission to the mental health unit at 6:00 a.m. (four hours). Thus, we find thatthe People proved the voluntariness of defendant's conduct and statements and disproveddefendant's claim that sleep deprivation rendered them involuntary.
Footnote 7: At defendant's request, the word"torture" was deleted from the jury charge on depraved indifference murder and we evaluate thesufficiency of the evidence in light of the charge as given, without objection (see People v Ford, 11 NY3d 875,878 [2008]).
Footnote 8: We decline to review the jurors'notes (see 22 NYCRR 220.10 [e]).