| People v Taft |
| 2016 NY Slip Op 08123 [145 AD3d 1090] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Veronica L. Taft, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Peter N. DeLucia ofcounsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Broome County(Cawley, J.), rendered February 26, 2013, upon a verdict convicting defendant of thecrimes of murder in the second degree, manslaughter in the first degree and endangeringthe welfare of a child (three counts).
On December 30, 2010, at approximately 10:00 a.m., police were dispatched todefendant's residence to respond to a 911 report of a child not breathing. Police andparamedics arrived at defendant's home to find defendant, her then boyfriend (hereinafterthe boyfriend) and her two-year-old son (hereinafter the victim), who was unresponsiveand without a pulse. When a responding officer spoke with defendant, defendant toldhim that, on the prior evening, she had left her four children in the care of the boyfriendbefore working from 11:00 p.m. to 7:00 a.m. The victim was rushed to the hospital,where he was eventually pronounced dead and found to have died due to blunt forceimpact trauma to his abdomen that resulted in a torn liver and fatal internal bleeding.
In September 2011, defendant was indicted for the crimes of murder in the seconddegree (depraved indifference murder of a child), manslaughter in the first degree andendangering the welfare of a child (six counts). Following a jury trial, defendant wasconvicted of murder in the second degree, manslaughter in the first degree andendangering the welfare of a child as it related to confining the victim in a dark room,hitting and knocking the victim off the couch onto the floor and forcing the victim's faceinto a pillow. County Court sentenced defendant to concurrent prison terms of 25 yearsto life for the conviction of murder in the second degree and 25 years for the convictionof manslaughter in the first degree, to be followed [*2]byfive years of postrelease supervision, and concurrent one-year jail terms for each of thethree convictions for endangering the welfare of a child. Defendant now appeals.
We agree with defendant that, as to the convictions for murder in the second degreeand manslaughter in the first degree, the verdict was against the weight of the evidence.Pursuant to their theory of the case, the People were required to prove beyond areasonable doubt that defendant inflicted the trauma that caused the victim's death(see Penal Law §§ 125.20 [4]; 125.25 [4]). In our weight of theevidence analysis, this Court "sits, in effect, as a thirteenth juror" (People v Cahill, 2 NY3d14, 58 [2003] [internal quotation marks and citation omitted]; accord People v O'Neil, 66AD3d 1131, 1132 [2009]). A weight of the evidence review requires this Court tofirst determine whether, "based on all the credible evidence[,] a different finding wouldnot have been unreasonable" (People v Bleakley, 69 NY2d 490, 495 [1987]).Where a different finding would not have been unreasonable, we must "weigh therelative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supportedby the weight of the evidence" (People v Ramsaran, 141 AD3d 865, 869 [2016] [internalquotation marks and citations omitted]).
The sole scientific evidence that was introduced at trial indicated that the victim mostlikely suffered his injuries more than three hours after defendant had left the victim withthe boyfriend and gone to work. In this regard, the People introduced the experttestimony of the forensic pathologist who had conducted an autopsy on the victim. Basedon the injuries that the victim sustained, the pathologist "estimated" that the victim wouldhave died approximately an hour after his injuries were inflicted. The pathologistexplained that he relied upon records of the victim's body temperature taken at thehospital to determine the victim's time of death, and that the victim "most likely" died at"about 3:00 [a.m.]"[FN1] Considering the foregoing, thepathologist's calculations indicated that the victim's wounds were inflicted atapproximately 2:00 a.m.—more than three hours after defendant had left the homeand more than five hours before she returned.
The boyfriend testified that he did not inflict the wounds that led to the victim's deathand, essentially, that the period in which he babysat defendant's children wasuneventful.[FN2]For this testimony to be reconcilable with the People's theory of the case, the boyfriend'ssupervision of the victim—a two-year-old infant—had to be so minimal thathe was unable to ascertain that the victim was mortally wounded or deceased during amore than eight-hour period.[FN3] Regarding [*3]the night in question, the boyfriend described cookingdinner for the children as defendant left for work at approximately 10:45 p.m. Heacknowledged that, shortly after the victim's body was discovered, he had informedpolice officers that he had fed the children the evening before; when specifically askedwhether that included the victim, he responded in the affirmative.[FN4] However, at trial, theboyfriend testified that, although he had retrieved defendant's youngest daughter fromher crib for dinner, which he described as being "two feet" from the bunk bed uponwhich the victim was lying on the bottom bunk, he "[had]n't take[n] it upon [him]self towake [the victim] to eat" and that he had assumed the victim had eaten because he laterfound that his plate was empty. Further, the boyfriend testified to having "tucked in"defendant's three-year-old daughter later that night in the same bottom bunk bed uponwhich the victim laid without noticing anything amiss with the victim.
During the course of his trial testimony, the boyfriend acknowledged that, whilemaking a phone call in a police interview room shortly after the victim's death, he stated,"I don't know my nigger, this little nigger be running around doing mad shit." Theboyfriend also acknowledged stating to a child protective services caseworker, "I'm notgetting the death penalty for no accident," but testified that the statement was taken outof context. Moreover, the boyfriend acknowledged at trial that he had been offeredimmunity if he testified against defendant at the grand jury proceeding—testimonythat he eventually gave. Finally, the boyfriend testified that after the victim had beenfound that morning, and while others attempted to revive him, he had punched a hole inthe wall of the apartment. The boyfriend had stated the same thing to law enforcementafter a police investigator had noticed injuries to the boyfriend's knuckles immediatelyafter the victim's death. In addition, a police investigator examined the wall andconcluded that the hole was unrelated to the victim's injuries.
Finally, while defendant's previous paramour (hereinafter the paramour) testifiedthat, on January 10, 2011, defendant called him at approximately 2:00 a.m. and confessedto having caused the injuries that led to the victim's death,[FN5] the paramour did not make thisstatement to law enforcement until five months after the victim's death and after he hadbeen arrested on an unrelated charge of violating an order of protection.[FN6] He acknowledged that hehad reached out to law enforcement after his arrest because he had information about thiscase and other cases and because he hoped "to get the best deal [that he] could." Ininitially meeting with law enforcement, the paramour stated that the boyfriend hadconfessed to him that he had killed the victim. Specifically, the paramour told lawenforcement that the boyfriend told him that he had found out about the paramour'songoing sexual relationship with defendant and was upset. The paramour acknowledgedthat, on at least four different occasions, he told law enforcement and/or [*4]prosecution officials that the boyfriend had confessed tokilling the victim.
At trial, however, the paramour testified that he had been lying when he said that theboyfriend confessed to the killing. He testified that it was only after a law enforcementofficer confronted him and accused him of lying to protect defendant and after conferringwith his counsel that he had a "sudden epiphany" and informed the officials that it wasactually defendant who confessed to him. Moreover, the paramour's testimony was oftencontradictory and inconsistent. The paramour initially testified that the only time thatdefendant acknowledged having injured the victim was during the January 10, 2011phone conversation. In addition, in earlier recorded statements, the paramour hadconsistently indicated that defendant had confessed on one occasion. Later during histrial testimony, however, the paramour stated that defendant had confessed to him morethan once.[FN7]When cross-examined about these inconsistent statements, the paramour contended thathe had told police about the multiple confessions but that they must have failed to recordthat portion of his statement.
The paramour also testified that his "intimate" relationship with defendant hadbecome a "platonic" relationship by October or November 2010 before contradicting thattestimony with the admission that he continued to have an ongoing sexual relationshipwith defendant thereafter. Although the paramour had told law enforcement that he"didn't speak to [defendant]" between the alleged January 10, 2011 phone-call confessionand seeing her at a bowling alley in March 2011, he testified at trial that he had actuallybeen in touch with her "several times" during that period. The paramour also testified attrial that defendant had never stated where she kicked the victim, but later acknowledgedhaving made a statement to law enforcement that defendant had told him that she hadkicked the victim in the abdomen or chest. Initially during his testimony, the paramourwas adamant that he had told no one, before he told law enforcement, that defendant hadconfessed to him. The paramour later testified that he had told his mother about theconfession and that his prior testimony that he had not told anyone was incorrect.Moreover, the paramour acknowledged that he had previously told the police thatdefendant indicated that she became upset with the victim on December 29, 2010 in partbecause a child protective services caseworker had visited her that day. Notably, therewas no proof introduced that a caseworker had visited defendant on the day leading up tothe victim's death.
Weighing the conflicting proof and inferences, we find the jury's verdict that theproof established beyond a reasonable doubt that defendant committed murder in thesecond degree and manslaughter in the first degree to be against the weight of theevidence (see People vWright, 139 AD3d 1094, 1095-1096 [2016], lv denied 28 NY3d 939[2016]; People v Graham,107 AD3d 1296, 1298 [2013]; People v Nisthalal, 87 AD3d 702, 705 [2011]; People v Grice, 84 AD3d1419, 1419 [2011], lv denied 17 NY3d 806 [2011]; People v St. Andrews, 82AD3d 1356, 1358 [2011]; People v Fortunato, 70 AD3d 851, 852-853 [2010];People v O'Neil, 66 AD3d at 1134; People v Madison, 61 AD3d 777, 777-779 [2009]; People v Jones, 59 AD3d 864,867 [*5][2009]; People v Zephyrin, 52 AD3d 543, 544 [2008]).Accordingly, we modify the judgment by dismissing those counts. In contrast,considering the eyewitness testimony from other witnesses supporting defendant'sconvictions for endangering the welfare of a child, we find the remainder of the verdictto be supported by the weight of the evidence. Defendant's remaining contentions havebeen considered and found to be without merit.
Garry, Lynch, Devine and Clark, JJ., concur. Ordered that the judgment is modified,on the facts, by reversing defendant's convictions of murder in the second degree andmanslaughter in the first degree under counts 1 and 2 of the indictment; said countsdismissed and the sentences imposed thereon vacated; and, as so modified, affirmed.
Footnote 1:Based on questionsrelated to the pathologist's degree of certainty as to his conclusion, the pathologisttestified that it was "technically possible" that the victim's time of death was 11:00 p.m.and that it was "within the realm of possibility" that the injuries could have been inflictedat 9:00 p.m. This scenario, however, would assume a 50% error rate in the time of deathcalculation and would have also doubled the amount of time that it took the victim to diefrom his injuries.
Footnote 2:At the time of thevictim's death, unrelated assault charges were pending against the boyfriend.
Footnote 3:The boyfriend explainedthat, when he babysat, he did not change diapers and that he tasked defendant'sfour-year-old daughter with changing the diapers of the victim and defendant's youngestdaughter.
Footnote 4:According to thePeople's theory of the case, the victim would have had to have been either mortallywounded or already dead at this point in time.
Footnote 5:The paramouracknowledged that he had previously been convicted of criminal contempt, possessionwith intent to sell narcotics, resisting arrest and menacing.
Footnote 6:The paramour explainedthat defendant had contacted his girlfriend, which resulted in an argument between theparamour and his girlfriend. When police responded, the paramour was arrested forviolating an order of protection that was in effect that prevented him from having contactwith his girlfriend.
Footnote 7:For example, theparamour testified to an instance in which he had visited defendant's apartment and shehad pointed to a hole in the wall and explained that it was where she had slammed thevictim. This testimony not only contradicted the paramour's previous testimony andstatements, but it also contradicted the People's theory of the case, which was that thehole in the wall was unrelated to the victim's injuries. During closing argument, thePeople stated that "we know [the boyfriend] punched a hole in the wall."