| People v Waite |
| 2016 NY Slip Op 08125 [145 AD3d 1098] |
| December 1, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gary L. Waite, Appellant. |
David M. Abbatoy Jr., Rochester, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Garry, J.P. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered December 12, 2013, upon a verdict convicting defendant of the crimes ofmurder in the second degree, manslaughter in the second degree and endangering thewelfare of a child.
Defendant's 15-month-old child sustained fatal head injuries while he was indefendant's exclusive care. Defendant was thereafter charged with murder in the seconddegree, manslaughter in the second degree and endangering the welfare of a child. InMarch 2012, the People moved to disqualify defendant's two retained attorneys due to aconflict of interest. One of the attorneys withdrew and, following a hearing, CountyCourt disqualified the second attorney with defendant's consent. Thereafter, defendant'snew attorney advised the court that he had previously represented the child's mother. At ahearing, the mother testified that she had shared information with this counsel that sheconsidered to be secret. Counsel objected to disqualification, and defendant stated that hewas willing to waive the potential conflict of interest, but the court nevertheless deemedcounsel to be disqualified and assigned a fourth attorney to represent defendant.Thereafter, the court granted defendant's motion to dismiss the charge of murder in thesecond degree on the ground that there was insufficient evidence to establish depravedindifference. Upon the People's appeal, this Court reversed and reinstated the charge(108 AD3d 985, 987 [2013]). Following a jury trial, defendant was convicted as chargedand sentenced to an aggregate prison term of 25 years to life. Defendantappeals.
[*2] Defendant contends that theevidence of indifference and recklessness was legally insufficient to support hisconviction for depraved indifference murder. As for indifference, the People wererequired to show that defendant's mens rea when the crime occurred was one of "an utterdisregard for the value of human life—a willingness to act not because one intendsharm, but because one simply doesn't care whether grievous harm results or not" (People v Suarez, 6 NY3d202, 214 [2005]; see Peoplev Feingold, 7 NY3d 288, 296 [2006]). The People established at trial thatdefendant was alone with the child from approximately 11:00 a.m. to 6:00 p.m., at whichpoint his sister arrived, found the child unresponsive and directed defendant to call 911.Defendant initially told police that the child had fallen off a couch and cut his lipbetween 2:00 p.m. and 3:00 p.m., that he called a friend who often helped him care forthe child for advice, and that she told him not to seek medical assistance yet and to keepthe child awake. After the child fell, according to defendant, he played with a stuffedanimal and later watched television while seated in a chair, getting up a few times tocome over to defendant.
Defendant told police that shortly before 6:00 p.m., the child stood up, fell forwardand hit his face on a metal chair. He stated that the child was bleeding and gasping forair, and his eyes were rolling back in his head. Defendant called the friend and his motherto tell them that the child was "hurt bad," and they dispatched his sister to his home. Hestated that he did not call for medical assistance because "[he] was panicking and[emergency personnel] wouldn't have understood [him]."
Later that evening, defendant amended his statement, acknowledging that he had notpreviously told the police the full truth. He stated that the child cried for 20 or 30 minutesafter the initial fall from the couch. When the child "wouldn't stop bugging out,"defendant became frustrated and "tossed" him to the other end of the couch; the childbounced off and his head hit the hardwood floor. According to defendant, the child then"mellowed out" and "looked tired and not like [he] usually act[ed]." In a separateconversation that same evening, defendant told an emergency room nurse that the child"wasn't acting right" after he fell out of a chair, and that he heard the child "make a weirdnoise and was moving weird." The nurse testified that, based upon defendant'sdescription and demonstration, she identified the strange sound as agonal breathing andthe unusual movements as posturing, both of which were signs of severe braininjury.
The uncontradicted testimony of the People's medical witnesses challenged thecredibility of defendant's explanations for the child's catastrophic head injuries, whichincluded a fractured skull, a subdural hematoma and severe swelling of the brain. Thetreating emergency room physician, the medical examiner and a pediatric neurosurgeonopined that these injuries could not have resulted from falling or bouncing off a couch orchair. Instead, such injuries were caused by significant force, such as that of a car crashor a fall from an upper story; the emergency room physician testified that he had seencomparably severe injuries caused, in one case, by an elevator that fell on a child's headand, in another, by a collapsing gravestone. The medical testimony further called intoquestion defendant's claim that the child was able to play, watch television, stand up andwalk after the initial injury. The physicians opined that the child probably never regainedconsciousness; if he did so briefly, he would have been in severe pain and would quicklyhave become unresponsive and then comatose. The medical examiner testified that thechild's increasing lethargy and unresponsiveness—caused by the swelling of hisbrain as time passed—would have been "very obvious" to an average layperson.He further testified that several injuries on the child's face, arms and legs—whichincluded facial bruises consistent with being punched in the eye, other bruises on his faceand upper thighs, a bruise on his arm consistent with being grabbed, and a faciallaceration that would have required sutures if he had survived—had occurredcontemporaneously but could not all have resulted from a single [*3]blow. The neurosurgeon testified that the time intervalbetween the infliction of these injuries and the arrival of medical assistance could havebeen up to three hours.
This evidence was supplemented by the testimony of two neighbors who heard aloud banging sound in defendant's apartment that afternoon. One neighbor, who livedbelow defendant's apartment, said that the sound was so loud that it frightened hischildren. The other neighbor, who was outside, stated that he heard a loud bang as if"someone was carrying a couch and dropped it on a wooden floor" followed by a screamlike "a terrifying kid in anguish" that was not a child's normal cry. Thereafter, he heardmore bangs, interrupted by crying and screaming that indicated to him that a child "wasbeing hurt." After a total of seven or eight bangs, the child made no more sounds.
Taken as a whole, the jury could rationally have concluded that defendant brutallyassaulted the child because he did not stop crying after the initial, relatively minor fallfrom the couch. This attack occurred—by defendant's ownaccount—sometime between approximately 2:30 p.m. and 3:30 p.m. The jurycould further have concluded that defendant's failure to seek medical assistance for thechild during the hours that followed—despite his admitted awareness that the childwas behaving abnormally and his knowledge of "the brutal origin of the injuries and theforce with which they were inflicted"—displayed the wanton, uncaring mentalstate that constitutes depraved indifference (People v Barboni, 21 NY3d 393, 402 [2013]; see People v Nelligan, 135AD3d 1075, 1077-1078 [2016], lv denied 27 NY3d 1072 [2016]; People v Keegan, 133 AD3d1313, 1316 [2015], lv denied 27 NY3d 1152 [2016]; People v Johnson, 127 AD3d451, 451-452 [2015], lv denied 26 NY3d 1009 [2015], cert denied578 US &mdash, 136 S Ct 1669 [2016]; People v Griffin, 48 AD3d 1233, 1235 [2008], lvdenied 10 NY3d 840 [2008]; People v Ford, 43 AD3d 571, 573-574 [2007], lvdenied 9 NY3d 1033 [2008]; see also People v Dallas, 119 AD3d 1362, 1365-1366[2014], lv denied 24 NY3d 1083 [2014]).
Contrary to defendant's argument, the fact that he called and texted a friend severaltimes during the afternoon for advice on caring for the injured child does not require adifferent conclusion. The uncontradicted evidence established that defendant dissembledthe circumstances and the child's condition in these communications, failing to tell thefriend that anything more serious than falling off the couch had happened to the child orthat his behavior was unusual. The jury could reasonably have concluded that defendantwas seeking to minimize the gravity of the child's condition rather than genuinelyattempting to obtain assistance, and that his intent was to protect himself rather than thechild. As we said when this case was previously before us, "a defendant who inflictssevere injuries upon a child and then attempts to weave a story over several hours to savehimself while the child suffers is hardly less callously indifferent to the child's life thanone who waits and eventually dispassionately reports the child's condition" (108 AD3d at987).
Further, the fact that defendant was panic-stricken and distraught by the time hefinally did summon aid does not alter the case. The People were required to show thatdefendant had the necessary mens rea of callous indifference when the crime occurred,not at all times thereafter. The jury could rationally have concluded that he had therequisite mental state of callous indifference during the attack and the period in which hefailed to seek medical assistance or tell the truth to his friend about the child's condition,and that he did not become distraught until he realized that the grievous harm he hadinflicted could not be concealed (compare People v Barboni, 21 NY3d at402).
Defendant next contends that the severity of the child's injuries established that heacted with an intent to kill and that the People therefore failed to prove that he acted withthe [*4]recklessness required for a conviction pursuant toPenal Law § 125.25 (4). As he concedes, this claim is unpreserved.Nevertheless, defendant also asserts that the verdict was against the weight of theevidence, which requires this Court to determine whether each element of the chargedcrimes was proved beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Harden, 134 AD3d1160, 1160 [2015], lv denied 27 NY3d 1133 [2016]). Upon review, we findno merit in the claim. The gravity of the injuries sustained by this vulnerable15-month-old child, without more, does not establish that "[defendant] intended to causedeath or serious physical injury, in the sense of having that as a conscious objective orpurpose" (People v Barboni, 21 NY3d at 404 [emphasis omitted]). Defendant didnot use a gun or other means that inherently suggest an intent to kill (see id.), norwas there proof that he had "any motive, animosity or ill will" that might have led him toform the purpose of killing the child (People v Bowman, 48 AD3d 178, 182 [2007], lvdenied 10 NY3d 808 [2008]; accord People v Griffin, 48 AD3d 1233, 1235 [2008],lv denied 10 NY3d 840 [2008]). We find that the verdict was not against theweight of the evidence.[FN*]
Finally, defendant's contention that County Court abused its discretion bydisqualifying his counsel is unavailing. Initially, the record belies defendant's contentionthat the court failed to inform him that he could waive the conflict created by the fact thathis second attorney had previously represented a potential trial witness. Instead, the courtplainly advised defendant that he could continue to be represented by this counsel if heso chose, although also noting that counsel had advised against this course of action, andthat the court agreed it was unwise. Defendant's response—that he would accepthis counsel's advice and seek new representation by the Public Defender'soffice—clearly indicated his understanding that he had a choice.
As for the disqualification of the third attorney, "[a] criminal defendant's right tocounsel of his or her choice is not absolute and may properly be circumscribed wheredefense counsel's continued representation of the defendant would present a conflict ofinterest" (People vRobinson, 121 AD3d 1179, 1180 [2014]). When a conflict exists, a court mustbalance the defendant's constitutional right to the effective assistance of counsel againsthis or her right to be represented by the counsel of his or her choice, and the decisionmay be challenged on constitutional grounds no matter which alternative it selects (see People v Watson, 26 NY3d620, 624 [2016]; People vCarncross, 14 NY3d 319, 327 [2010]; People v Gomberg, 38 NY2d 307,312-313 [1975]). As it is particularly difficult to predict the potential implications of aconflict of interest before a trial, a "court [is] allowed substantial latitude in refusingwaivers of conflicts of interest not only in those rare cases where an actual conflict maybe demonstrated before trial, but in the more common cases where a potential for conflictexists which may or may not burgeon into an actual conflict as the trial progresses"(Wheat v United States, 486 US 153, 163 [1988]).
Here, this counsel's prior representation of the child's mother was limited to a fewbrief communications and appearances in a child support violation proceeding. Counselstated that he had learned no confidential information that could affect his representation,and defendant stated that after discussing the potential conflict, he was willing to waiveit. However, the mother testified that she had shared information with counsel that sheconsidered to be secret, and she refused to waive the confidentiality of this informationor agree to counsel's representation of [*5]defendant. Shefurther stated that she was already uncomfortable about the prospect of testifying as ahostile witness at the trial and that counsel's continued representation of defendant wouldmake this more difficult for her. In light of all the circumstances, and particularlyconsidering the unknown nature of the confidential information that the mother hadprovided and the concomitant difficulty of predicting its potential impact upon the trial,disqualification of this counsel was "a proper exercise of [County Court's] broaddiscretion" (People v Robinson, 121 AD3d at 1180; see People v Watson,26 NY3d at 625-626; People v Carncross, 14 NY3d at 330; People vGordon, 272 AD2d 133, 134 [2000], lv denied 95 NY2d 890 [2000]; seealso People v Hall, 46 NY2d 873, 874-875 [1979], cert denied 444 US 848[1979]).
Egan Jr., Rose, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We reject defendant'salternative argument that his counsel was ineffective for failing to preserve the intentissue, as failing to pursue a meritless claim does not constitute ineffective assistance (see People v Kindred, 100AD3d 1038, 1041 [2012], lv denied 21 NY3d 913 [2013]).