| People v Jamison |
| 2007 NY Slip Op 09264 [45 AD3d 1438] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jesse Jamison,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered July 25,2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [4]). Defendant failed to preserve for ourreview his contention that the evidence is legally insufficient to support the conviction (seePeople v Finger, 95 NY2d 894 [2000]; People v Gray, 86 NY2d 10, 19 [1995]) and,in any event, that contention lacks merit. We conclude in particular that the evidence is legallysufficient to establish that defendant possessed the requisite culpable mental state to support theconviction of depraved indifference murder (see People v Poplis, 30 NY2d 85, 88[1972]; People v Ford, 43 AD3d571, 573 [2007]; People vSmith, 41 AD3d 964, 966 [2007], lv denied 9 NY3d 881 [2007]; People v Weeks, 15 AD3d 845,846 [2005], lv denied 4 NY3d 892 [2005]; see generally People v Suarez, 6 NY3d 202, 208-215 [2005]).Defendant made a series of statements to the police in which he described his intent to disciplinehis 28-month-old stepdaughter after she had soiled her diaper. According to the last of thosestatements, the 275-pound defendant spanked the 25-pound victim shortly after an earlierspanking. Defendant was angry, and he spanked the victim "sorta hard," enough to propel herabdomen into the wooden railing of the bunk bed. She bounced off the bed and fell backward,hitting her head on the floor. Although the victim then started screaming and "grabbing herstomach" with her legs up in the air, defendant nonetheless proceeded "to whoop" the victim asshe lay on the floor. He stated that he "was trying to hit her butt," but that he also hit her on theback and side inasmuch as "she was moving around."
The autopsy evidence established that the victim bled to death internally as a result of"significant" lacerations to her liver and extensive "tearing" in the tissues containing the vesselsthat supply blood to the intestines. Also, the outer surface of one of the loops of her small bowel[*2]was torn. The injuries were "caused by blunt trauma to theabdomen" and were not consistent with a spanking on the buttocks. Rather, they were consistentwith "direct trauma applied to the abdomen from the front" with "significant force." According tothe autopsy evidence, the injuries could have been caused by the victim's abdomen having beendriven into a "protruding object" such as a wooden bed frame, depending on "how much force[wa]s applied," but were more likely caused by a forceful direct blow to the victim's abdomen.
Based on that evidence, the jury reasonably could have inferred that, in striking a28-month-old child in the abdomen with such significant force, or in impelling the child'sabdomen with such force into an immovable object, defendant consciously disregarded the riskof serious injury or death to the child, i.e., that he acted recklessly (see Ford, 43 AD3d at573). The jury further could have inferred that defendant's actions reflected "wanton cruelty,brutality or callousness directed against a particularly vulnerable victim, combined with utterindifference to the life or safety of the helpless target of the perpetrator's inexcusable acts," i.e.,depraved indifference (Suarez, 6 NY3d at 213; see Ford, 43 AD3d at 573; People v Smith, 41 AD3d 964,966 [2007], lv denied 9 NY3d 881 [2007]). We note in particular the statements ofdefendant tending to establish his prolonged "brutal assault on a vulnerable [28-month-old]child," an assault that admittedly continued after the fatal injuries were inflicted (Ford, 43AD3d at 573; see Suarez, 6 NY3d at 212-213). Also contrary to defendant's contentions,the verdict is not against the weight of the evidence on the issues of defendant's allegedrecklessness and depraved indifference (see Smith, 41 AD3d at 967; People v Nickels, 37 AD3d 1110,1110-1111 [2007], lv denied 8 NY3d 988 [2007]; see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Because the conviction is supported by legally sufficient evidence adduced at trial, thealleged insufficiency of the evidence before the grand jury is not reviewable on appeal(see CPL 210.30 [6]; People vSmith, 4 NY3d 806, 808 [2005]; People v Freeman, 38 AD3d 1253, 1254 [2007], lv denied9 NY3d 875 [2007]). Defendant's contention with respect to County Court's "juryinstructions relating to depraved indifference murder . . . were never raised below,and are therefore unpreserved [for our review]" (People v Castellano, 41 AD3d 184, 184 [2007]). In any event, thatcontention, and defendant's related challenge to the similar instructions given at the grand juryproceeding, are without merit. Those instructions "were entirely unremarkable in light of thethen-applicable law" (People vJohnson, 43 AD3d 288, 290 [2007]; see generally People v Feingold, 7 NY3d 288, 294 [2006];People v Register, 60 NY2d 270, 276-278 [1983], cert denied 466 US 953[1984]). Present—Scudder, P.J., Gorski, Lunn, Peradotto and Green, JJ.