| People v Griffin |
| 2008 NY Slip Op 01202 [48 AD3d 1233] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mandi T.Griffin, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown, for respondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedMarch 13, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, manslaughter in the first degree, assault in the second degree, and endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of assault in the second degree and dismissing countthree of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of,inter alia, murder in the second degree (Penal Law § 125.25 [4] [depraved indifference]),manslaughter in the first degree (§ 125.20 [4]), and assault in the second degree (§120.05 [9]). By failing to object to the alleged inconsistency in the verdict with respect to thecharges of murder in the second degree and manslaughter in the first degree before the jury wasdischarged, defendant failed to preserve for our review her contention with respect to that allegedinconsistency (see generally People v Alfaro, 66 NY2d 985, 987 [1985]; People v Carter, 39 AD3d 1226,1227 [2007], lv denied 9 NY3d 863 [2007]). We decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
We reject defendant's further challenge to the legal sufficiency of the evidencesupporting the conviction of depraved indifference murder (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to the contention of defendant, the evidenceis legally sufficient to establish that she possessed the requisite culpable mental state to supportthat conviction (see People v Bowman, 48 AD3d 178 [2007]; People v Jamison, 45 AD3d 1438,1439-1440 [2007]; People v Ford,43 AD3d 571, 573-574 [2007]; People v Smith, 41 AD3d 964, 966-967 [2007], lv denied 9NY3d 881 [2007]; see generally Peoplev Suarez, 6 NY3d 202, 210-213 [2005]). Defendant admitted to the police that she wasfrustrated with her three-year-old daughter, who suffered from cerebral palsy, and that she"slammed her and threw her on the couch about four or five times," causing the child to strike herhead on the wooden armrest and upper portion of the couch. The autopsy evidence establishedthat the child died as a result of a subdural hematoma caused by blunt force trauma to the head.The Medical Examiner testified that the child had been struck "maybe four, five or eight times onthe left side of the head . . . [which] were enough to disrupt the membranes within[*2]the skull, which then permitted the bleeding to occur." Helikened the head injuries to those possibly caused by a fall "from a second story stairway" andtestified that the injuries were consistent with "[i]mpact blows" in which "several hundred if notseveral thousand G forces are produced." Based on the child's core body temperature of 88degrees when she was brought to the emergency room, the Medical Examiner estimated that thechild had died approximately three to five hours earlier.Defendant contends that, because her conduct was "but a single abusive incident," it does notrise to the requisite level of depravity and was indicative of a manifest intent to kill rather thanrecklessness. We reject that contention. Based on the medical evidence and defendant'sadmissions, the jury could have reasonably inferred that, in slamming a three-year-old child withcerebral palsy numerous times into the wooden portions of a couch with sufficient force to causethe injuries described by the Medical Examiner, "defendant consciously disregarded the risk ofserious injury or death to the child, i.e., that [s]he acted recklessly" (Jamison, 45 AD3d at1439; see Ford, 43 AD3d at 573). With respect to our conclusion that defendant actedrecklessly rather than intentionally, we note in particular that "[n]o testimony or evidence waspresented at trial that the defendant had any motive, animosity or ill-will towards the victim, orthat, previously, [s]he had been an abusive [mother]" (Bowman, 48 AD3d at 182). Depraved indifference has been described by the Court of Appeals as"wanton cruelty, brutality or callousness directed against a particularly vulnerable victim,combined with utter indifference to the life or safety of the helpless target of the perpetrator'sinexcusable acts" (Suarez, 6 NY3d at 213), and here depraved indifference may beinferred from the actions of defendant in repeatedly slamming her three-year-old helpless childafflicted with cerebral palsy into the wooden portion of a couch with enough force to produce theinjuries sustained by the child (see Bowman, 48 AD3d at 184-185; Jamison, 45 AD3d at 1439-1440; Ford, 43 AD3d at 573). Additionally, thePeople presented evidence at trial that defendant then placed the child face-down on a bedbecause she did not want to hear the child scream, and that she left the child alone while sheexercised in the living room and took a two-hour bath instead of immediately seeking medicalattention for the child because she "could not deal with it then." That conduct "was a furtherdisplay of [her] 'utter disregard of the value of human life' . . . [and] was as wantonas [her] conduct in creating the situation" (Bowman, 48 AD3d at 186).
Defendant failed to preserve for our review her further contention that the evidence is legallyinsufficient to establish that she was at least 18 years of age when the crimes were committed,inasmuch as she failed to seek a trial order of dismissal with respect to the first three counts ofthe indictment on that ground (see People v Gray, 86 NY2d 10, 19 [1995]). In any event,that contention is without merit. The sworn statements of defendant contained her age and date ofbirth and were properly admitted in evidence as admissions against her penal interest, and her agewas corroborated by the admission in evidence of her daughter's birth certificate, which identifieddefendant as the mother and gave her date of birth (see generally People v Delgado, 292AD2d 212, 213 [2002], lv denied 98 NY2d 696 [2002]). Defendant also failed topreserve for our review her contention that she was unfairly prejudiced when County Court in itsjury instructions characterized the crimes of manslaughter in the second degree and criminallynegligent homicide as "lesser included offenses," as well as her contention that the court erred insubmitting the murder and manslaughter counts to the jury in the conjunctive (see CPL470.05 [2]; People v Green, 35AD3d 1211, 1212 [2006], lv denied 8 NY3d 985 [2007]), and we decline to exerciseour power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject the contention of defendant that the court erred in denying without a hearing herCPL 330.30 motion seeking to vacate the judgment on the ground that she was denied effectiveassistance of trial counsel. Defendant's contention concerns matters outside the record [*3]on appeal, i.e., the alleged failure of defense counsel to conduct anadequate investigation of the case and to prepare for trial, and they thus are properly the subjectof a motion pursuant to CPL 440.10 (seePeople v Washington, 39 AD3d 1228, 1230 [2007], lv denied 9 NY3d 870[2007]; People v Sharpe, 295 AD2d 957, 958-959 [2002]). Further, defendant's retainedcounsel was not ineffective for filing a procedurally improper CPL 330.30 motion rather than aCPL 440.10 motion because defendant is not precluded from bringing a motion to vacate thejudgment pursuant to CPL 440.10. Viewing the evidence, the law, and the circumstances of thiscase, in totality and as of the time of the representation, we conclude that defendant was notdenied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708,712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant also failed to preserve for our review her contention that the court penalized herby imposing a harsher sentence than that proposed in the plea offer because she exercised herright to a trial (see People v Tannis,36 AD3d 635 [2007], lv denied 8 NY3d 927 [2007]; People v Hargroves, 27 AD3d 765[2006], lv denied 7 NY3d 789 [2006]) and, in any event, that contention is without merit." '[T]he mere fact that a sentence imposed after trial is greater than that offered in connectionwith plea negotiations is not proof that defendant was punished for asserting [her] right to trial' "(People v Chappelle, 14 AD3d728, 729 [2005], lv denied 5 NY3d 786 [2005]; see People v Taplin, 1 AD3d 1044, 1046 [2003], lv denied1 NY3d 635 [2004]). Further, the record does not disclose any vindictiveness on the part ofthe court (see Hargroves, 27 AD3d at 766), nor does the record disclose that the courtthreatened to impose a harsher sentence if defendant rejected the plea offer.
The sentence is not unduly harsh or severe. We agree with defendant, however, that countthree of the indictment, charging her with assault in the second degree (Penal Law §120.05 [9]), is a lesser included offense of manslaughter in the first degree (§ 125.20 [4])because it is impossible to commit the greater offense without by the same conduct committingthe lesser offense (see CPL 1.20 [37]; see People v Glover, 57 NY2d 61, 63[1982]). Thus, count three of the indictment must be dismissed as a matter of law because "averdict of guilty upon the greater count is deemed a dismissal of every lesser inclusoryconcurrent count" (People v Moore,41 AD3d 1149, 1152, lv denied 9 NY3d 879, 992 [internal quotation marks andbrackets omitted], quoting People v Lee, 39 NY2d 388, 390 [1976]; see CPL300.40 [3] [b]). We therefore modify the judgment accordingly. Present—Smith, J.P.,Lunn, Peradotto, Green and Pine, JJ.