| People v Warrington |
| 2017 NY Slip Op 00507 [146 AD3d 1233] |
| January 26, 2017 |
| Appellate Division, Third Department |
[*1](January 26, 2017)
| The People of the State of New York, Respondent, vBrandon Warrington, Appellant. |
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
McCarthy, J.P. Appeal (upon remittal from the Court of Appeals) from a judgment ofthe County Court of Warren County (Hall Jr., J.), rendered July 11, 2013, upon a verdictconvicting defendant of the crimes of murder in the second degree, manslaughter in thesecond degree and endangering the welfare of a child.
At all relevant times, defendant resided with his live-in girlfriend, Jennifer Mattison,as well as her five-year-old son (hereinafter the victim) and their infant son. On themorning of November 15, 2012, Mattison called 911 to report that the victim was havingtrouble breathing. The victim was suffering from severe head injuries, and he diedshortly thereafter. Defendant was indicted on charges of murder in the second degree,manslaughter in the second degree and endangering the welfare of a child stemming fromhis abuse of the victim and his role in causing the fatal injuries.[FN1] Following a jury trial, defendant wasconvicted as charged and sentenced to an aggregate prison term of 25 years to life. Onappeal, this Court, with one Justice dissenting, reversed the judgment and remitted thematter for a retrial upon the finding that County Court had committed reversible error infailing to excuse a [*2]prospective juror for cause (130AD3d 1368 [2015]). The Court of Appeals thereafter reversed this Court's order, holdingthat "the trial court did not abuse its discretion by denying defendant's for-causechallenge" to the prospective juror at issue (28 NY3d 1116, 1120 [2016]). Further, theCourt of Appeals remitted the matter to this Court "for consideration of the facts andissues raised but not determined on the appeal" (id. at 1122). We affirm.
Defendant first contends that County Court should have suppressed the statements hemade to investigators. Defendant had left the residence he shared with Mattison beforeshe called 911. The testimony at the suppression hearing reflects that, upon his return, hewas greeted by a police officer who had been dispatched to secure the scene. The officersummoned a police detective who requested that defendant accompany him to the policestation for questioning. Defendant agreed and the two traveled to an interview room atthe station where the detective activated a recording system and administeredMiranda warnings to defendant from a written form. Defendant then took theform, read and signed it and agreed to talk to investigators. County Court also viewed thevideo recording of the interrogation—which shows defendant being Mirandizedand the 5
Defendant next argues that the verdict was unsupported by legally sufficientevidence and, moreover, was against the weight of the evidence. Defendant's challengeto the legal sufficiency of the evidence requires us to evaluate whether "there is any validline of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Ramos, 19 NY3d133, 136 [2012]; People v Lynch, 95 NY2d 243, 247 [2000]). A weight ofthe evidence review, in contrast, requires us to make a threshold determination as towhether a different verdict would not have been unreasonable given all of the credibleevidence (see People vDanielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d at495). Where a different verdict would not have been unreasonable, this Court "must, likethe trier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony"(People v Bleakley, 69 NY2d at 495 [internal quotation marks and citationomitted]; see People v Danielson, 9 NY3d at 348).
Defendant first claims that the proof did not establish that he recklessly engaged inconduct that created a grave risk of serious physical injury or death to the victim and, infact, resulted in his death (see Penal Law §§ 15.05 [3]; 125.15[1]; 125.25 [4]). Physical examinations of the victim after his fatal injury revealed thatbruising, abrasions and other injuries covered his body and, while defendant attempted todispute the origin of those injuries, the trial record is replete with proof that they were theresult of abuse inflicted by defendant. Among the acts of abuse that Mattison observedwas one on November 11, 2012, when she saw defendant pick up the victim by the neckand repeatedly slam his head against a wall. The victim's fatal injuries [*3]similarly stemmed from blunt force trauma to the head,which led to brain swelling, subdural hematoma and cell death. Several physiciansopined that the fatal trauma must have occurred in the hours before the victim becameunresponsive, and Mattison's testimony sheds the most light on those hours.
Mattison specifically testified that defendant was very angry with the victim when hewas put to bed on November 14, 2012. The victim had seemed upset, but had otherwiseacted normally that evening, and Mattison discerned nothing unusual in his demeanorwhen she put him to bed. Mattison awoke around 2:30 a.m. on November 15, 2012 tofind defendant missing from their bedroom, and he failed to offer a persuasiveexplanation for his absence when he returned to bed. Defendant woke the victim up at7:45 a.m. to use the bathroom, which Mattison found odd given that the victim wasusually awake by then and defendant had no reason to rouse him. When the victimemerged from his bedroom, he was unsteady, pale and disoriented, and defendant had toguide him to the bathroom. Defendant responded to these clear signs of distress byslamming the victim on the floor and screaming that he should be able to use thebathroom on his own. Mattison left the room to tend to her infant son, who had beguncrying. She then heard a thud and returned to find the victim lying unconscious on hisbed. According to Mattison, defendant ordered her not to call 911 until he left for anappointment, and defendant admittedly wrote down a cover story for her to relate to theauthorities. Mattison eventually summoned assistance at 9:30 a.m. and reported that thevictim had hit his head after jumping on his bed, although she recanted that story in hertrial testimony.
Defendant continued to maintain at trial that the victim had fallen while jumping onhis bed. The medical evidence indicated, however, that such a routine accident could nothave inflicted the fatal trauma. Instead, testifying physicians opined that the victim'sinjuries could only have been caused by the type of force that would be encountered in aheavy blow, a fall from a great height or an automobile accident. It is also worthy of notethat, while defendant was at the police station later in the day, he wrote a letter toMattison in which he apologized for hurting the victim and stated that he "didn't think[he] pushed [the victim] . . . that hard."[FN2] In short, while no one observed thedeadly blow being struck, defendant was previously seen slamming the victim's headagainst a wall and was angry with the victim, his whereabouts in the residence wereunknown for a considerable portion of the overnight hours of November 15, 2012, andhe apologized to Mattison for injuring the victim. In our view, this proof was legallysufficient to permit a finding that defendant engaged in conduct that recklessly created arisk of serious physical injury or death to the victim and, in fact, caused his death. Thejury made that finding, notwithstanding the conflicting account offered by defendant.After assessing the proof offered at trial and according due deference to the jury'sassessment of credibility, we cannot say that its verdict was against the weight of theevidence (see People vMcLain, 80 AD3d 992, 996 [2011], lv denied 16 NY3d 897 [2011]; People v Varmette, 70 AD3d1167, 1169-1171 [2010], lv denied 14 NY3d 845 [2010]).
[*4] Defendant's similar challenge to the jury's finding thatthe circumstances of the victim's death "evinc[ed] a depraved indifference to human life"on his part is also unavailing (Penal Law § 125.25 [4]). Depravedindifference "is best understood as an utter disregard for the value of human life" (People v Suarez, 6 NY3d202, 214 [2005]) and may be found in those cases where the facts "reflect wantoncruelty, brutality or callousness directed against a particularly vulnerable victim,combined with utter indifference to the life or safety of the helpless target" (id. at213; see People v Barboni,21 NY3d 393, 400 [2013]; People v McLain, 80 AD3d at 997). Defendantinflicted brutal injuries upon a helpless child, and the jury could rationallyconclude—from his total indifference to the victim's physical distress upon wakingup, his refusal to allow Mattison to promptly summon medical assistance or relate thetruth of what happened, and his decision to leave the incapacitated victim and go to apreviously scheduled appointment—"that [he] evinced a wanton and uncaringstate of mind" (People v Barboni, 21 NY3d at 402; see People v McLain,80 AD3d at 997). Defendant points out that he later texted Mattison regarding thevictim's condition and wrote a letter expressing remorse, but his "state of mind and thereal reasons for [his later actions] . . . implicate[d] credibility questions" forthe jury to resolve (People vWaite, 108 AD3d 985, 987 [2013]; see People v Johnson, 106 AD3d 1272, 1278 [2013], lvdenied 21 NY3d 1043 [2013]). The jury determined that his belated expressions ofconcern did not reflect any interest in the victim's welfare and, deferring to theirassessment of credibility, we cannot say that their finding was against the weight of theevidence.
Defendant further claims that he was deprived of the effective assistance of counsel,but such an argument will fail "so long as the evidence, the law, and the circumstances ofa particular case, viewed in totality and as of the time of the representation, reveal thatthe attorney provided meaningful representation" (People v Goldston, 126 AD3d 1175, 1178-1179 [2015][internal quotation marks, brackets and citations omitted], lv denied 25 NY3d1201 [2015]; see People v Flores, 84 NY2d 184, 186-187 [1994]; People v Gokey, 134 AD3d1246, 1246 [2015], lv denied 27 NY3d 1069 [2016]). Defendant points to amyriad of purported errors, but stresses a mistake by defense counsel wherein heinadvertently elicited testimony regarding otherwise undisclosed prior assaultivebehavior and drug use by defendant. In light of the extensive proof documentingdefendant's violent behavior toward the victim and his use of synthetic marihuana,however, that error cannot be viewed as sufficiently egregious or prejudicial as todeprive defendant of a fair trial (see People v Sanchez, 54 AD3d 638, 639 [2008], lvdenied 11 NY3d 930 [2009]). Defense counsel further failed to object to thetestimony of a physician who examined the victim and found injuries consistent withspanking and anal penetration that had occurred no more than 24 hours before the fatalassault. The People used that proof, in conjunction with other evidence that defendantwas alone with the victim during the relevant period and made statements suggesting thathe was aware of the penetration, to suggest that defendant was the perpetrator of theabuse. Inasmuch as the proof was relevant to the charge of endangering the welfare of achild, however, any objection to its admission would have been fruitless (see Peoplev McIver, 245 AD2d 180, 180 [1997], lv denied 91 NY2d 1010[1998]).[FN3] Infact, far from the shoddy representation described by defendant, our review of the recordreveals that defense counsel engaged in appropriate pretrial motion practice, vigorouslycontested the People's case and advanced a cogent defense at all stages of trial. Thus,"despite any isolated and discrete shortcomings in" counsel's performance, we find thatdefendant received meaningful representation (People v Goldston, 126 AD3d at1179).
[*5] County Court did not abuse itsdiscretion in fashioning a Sandoval ruling that permitted the People to inquireinto the facts of a 2010 conviction for reckless endangerment in the second degree. Thatconviction was recent, "the nature of the conviction was probative of defendant'scredibility and honesty and the commission of that crime certainly does not suggest apropensity to commit the crimes for which defendant was on trial" (People v Henderson, 22 AD3d883, 884 [2005], lv denied 6 NY3d 776 [2006]; see People vChamberlain, 178 AD2d 783, 785 [1991], lv denied 79 NY2d 945 [1992]).We have previously rejected the contention that manslaughter in the second degree is alesser included offense of depraved indifference murder of a child, and we declinedefendant's invitation to revisit the issue in order to dismiss his manslaughter conviction(see People v Heslop, 48AD3d 190, 194-196 [2007], lv denied 10 NY3d 935 [2008]).
Next, defendant failed to preserve his contention that prosecutorial misconductdeprived him of a fair trial, and, having examined the alleged misconduct, we findcorrective action in the interest of justice is unwarranted (see People v Scippio, 144AD3d 1184, 1187-1188 [2016]; People v Fomby, 101 AD3d 1355, 1357 [2012]). Finally, inlight of the heinous nature of the crimes at issue, the sentence imposed was neither harshnor excessive (see People vJones, 139 AD3d 1189, 1191 [2016], lv denied 28 NY3d 932 [2016]; People v Nelligan, 135 AD3d1075, 1078 [2016], lv denied 27 NY3d 1072 [2016]; People v Engelhardt, 94 AD3d1238, 1241 [2012], lv denied 19 NY3d 960 [2012]). Those specificcontentions not addressed herein—considering defendant's brief, supplementalbrief and supplemental pro se brief—have been examined and are found to also bewithout merit.
Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Mattison was chargedwith various offenses regarding her role in the death and subsequent efforts to cover upits cause, and those charges were resolved in a plea agreement that required her totruthfully recount what had happened.
Footnote 2:This acknowledgmentand the proof of the victim's injuries readily "established that [defendant] 'knowinglyact[ed] in a manner likely to be injurious to the physical, mental or moral welfare' of" thevictim (People v Mitchell,94 AD3d 1252, 1255 [2012], lv denied 19 NY3d 964 [2012], quoting PenalLaw § 260.10 [1]). As such, his conviction for endangering the welfare of achild was based upon legally sufficient evidence and was supported by the weight of theevidence.
Footnote 3:Defense counselsuccessfully argued that the People should not be permitted to introduce highlyprejudicial Molineux evidence of uncharged sexual abuse that had occurred inJuly 2012.