| People v Barreto |
| 2009 NY Slip Op 05917 [64 AD3d 1046] |
| July 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JoshuaBarreto, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Young I. Choi, New York Prosecutor'sTraining Institute, Albany, of counsel), for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.),rendered April 8, 2008, upon a verdict convicting defendant of the crime of manslaughter in thesecond degree.
Defendant resided in an apartment in Greene County with his girlfriend and her two youngchildren. He was the biological father of the youngest child (born in 2004), but not of the victim(born in 2003). On May 29, 2006, defendant was alone with the children while his girlfriend wasat work. Shortly after 4:30 p.m., he placed a 911 call reporting that the victim had suffered aseizure and drowned while taking a bath. When emergency personnel arrived, they found that thevictim was not breathing and efforts to revive her—including CPR and inserting a trachealtube—were unsuccessful. She was clinically dead upon arrival at the emergency room.The cause of death was listed as traumatic cervical dislocation and cardiopulmonary arrest.
During the ensuing hours, defendant gave three statements to police. In his initial statement,he related that the victim had had a seizure in the bathtub and was swallowing water when hepulled her out and started CPR. After later being informed by police that the victim did not haveany water in her lungs and that she had numerous bruises on her body and head, defendantacknowledged in two subsequent statements that he had become angry with the victim, [*2]yelled at her and shook her "back and forth really hard." He statedthat, while shaking the victim, her head hit the side of the bathtub with an impact that hecharacterized as "really hard." He reported that he then started to pick up the victim, but lost hisbalance and dropped her into the bathtub, with her head again hitting the bathtub in the fall.
He was indicted on two counts of murder in the second degree and two counts ofmanslaughter in the first degree. Pretrial procedures included, as relevant on this appeal, aMolineux hearing, after which County Court rendered a detailed written decisionpermitting the People to introduce, for the purpose of showing the absence of an accident,evidence of two prior suspicious "accidental" injuries suffered by the victim while in defendant'scare, a wrist fracture in late January 2006, and bruising and a retinal hemorrhage occurringshortly before her demise. The court otherwise denied admission of further evidence regardingprior incidents that the People sought to introduce under Molineux. A lengthy jury trialensued that included conflicting opinions from experts, as well as proof from many otherwitnesses. Defendant elected to testify and claimed that the victim hit her head when they bothfell as he was in the process of removing her from the bathtub. He further contended that hiscontrary statements to police had been coerced and inaccurately transcribed. At the chargeconference, the parties agreed to submit to the jury one count of depraved indifference murderand, as a lesser included offense of one of the withdrawn charges, the crime of manslaughter inthe second degree (see Penal Law § 125.15 [1]). The jury acquitted defendant ofmurder, but found him guilty of manslaughter. He was sentenced to a prison term of 5 to 15years and now appeals.
Defendant initially argues that the verdict was not supported by legally sufficient evidenceand was against the weight of the evidence. "Evidence is legally sufficient if, when viewed in alight most favorable to the People, there exists any valid line of reasoning and permissibleinferences that could lead a rational person to the conclusion reached by the fact finder" (People v Logan, 19 AD3d 939,942 [2005], lv denied 5 NY3d 830 [2005] [internal quotations marks, brackets andcitations omitted]; see People vPlaisted, 2 AD3d 906, 907 [2003], lv denied 2 NY3d 744 [2004]). The thrust ofdefendant's argument is that the People failed to establish that the medical cause of the victim'sdeath was a cranial cervical dislocation resulting in cardiopulmonary arrest. The Peopleproduced at trial the pathologist who performed the autopsy and he opined that the victim diedfrom such cause. To be sure, defendant's expert in pathology was well qualified, and he criticizedthe findings and methods of the People's pathologist. Nevertheless, we are unpersuaded that thecriticism was so compelling as to render the opinion of the People's pathologist unworthy ofbelief by a rational juror. This evidence, together with the voluminous otherproof—including defendant's purported admission of repeatedly shaking the child hardand the child thereby striking her head on the bathtub—provide legally sufficient evidenceof each element of reckless manslaughter.
Where, as here, a different verdict would not have been unreasonable, we weigh theprobative force of conflicting testimony and the strength of conflicting inferences in determiningwhether the verdict is against the weight of the evidence (see People v Romero, 7 NY3d 633, 643 [2006]; People vBleakley, 69 NY2d 490, 495 [1987]). Differing versions of events were supplied by the factwitnesses and the jury heard experts who disagreed on key issues. We accord deference to thejury's resolution of such credibility issues given its opportunity to see the witnesses and observetheir demeanor (see People v Bleakley, 69 NY2d at 495; People v Portee, 56 AD3d 947,949 [2008], lv denied 12 NY3d 820 [2009]; People v Bolarinwa, 258 AD2d 827,831 [1999], lv denied 93 NY2d 1014 [1999]). Having reviewed and weighed theevidence in the record, we are unpersuaded that the jury's verdict was against the weight of theevidence.[*3]
Defendant next argues that he was deprived of a fair trialby County Court's jury charge regarding reckless manslaughter. County Court's charge, whichessentially mirrored the Criminal Jury Instructions charge (see CJI2d[NY] Penal Law§ 125.15 [1]), set forth, in pertinent part, the two elements of reckless manslaughter asfollows: "One, that on or about May 29th 2006, in the County of Greene, the defendant, JoshuaBarreto, caused the death of [the victim] by causing her to strike her head on a hard surface; andtwo, that the defendant did so recklessly." Defendant contends that, as to the first element, thecourt should have expanded the charge to tell the jury that the People had to prove, as alleged inthe bill of particulars, that the victim's head struck the bathtub and that the medical cause ofdeath was a cranial cervical dislocation. We are unpersuaded. "[T]he court's charge correctlyrecited the statutory elements of the crime and stated the fundamental legal principles applicableboth generally and to this particular case and count. Any shortcoming in the charge did not denydefendant a fair trial" (People vKuykendall, 43 AD3d 493, 495 [2007], lv denied 9 NY3d 1007 [2007][citations omitted]; see People v Medina, 233 AD2d 927, 927 [1996], lv denied89 NY2d 926 [1996]; cf. People v Grega, 72 NY2d 489, 497 [1988] ["The methodemployed to bring about death is not an 'element' of manslaughter"]).
County Court did not, as asserted by defendant, commit reversible error in itsMolineux ruling. " 'Evidence of a defendant's prior bad acts may be admissible when it isrelevant to a material issue in the case other than defendant's criminal propensity. . . Where there is a proper nonpropensity purpose, the decision whether to admit[such] evidence . . . rests upon the trial court's discretionary balancing of probativevalue and unfair prejudice' " (People vLeeson, 12 NY3d 823, 826-827 [2009], quoting People v Dorm, 12 NY3d 16, 19 [2009]). Following a hearing,County Court found clear and convincing evidence that the victim was in defendant's care at thetime of the earlier "accidental" injuries and then engaged in the proper weighing analysis,concluding that evidence of only some of the proffered acts would be admitted. The absence ofan accident, which is a recognized Molineux exception (see People v Henson, 33NY2d 63, 71-73 [1973]), was a key issue in this case, and County Court's ruling fell well withinits discretion.
At trial, defendant raised an issue as to whether his statements to police were voluntary, andhe contends that County Court did not properly instruct the jury regarding that issue. We do notagree. The court's charge included the "expanded charge" on the issue of voluntariness(see CJI2d[NY] Confession), correctly articulated the pertinent law, and clearly affordedthe jury ample instructions regarding defendant's challenge to the voluntariness of his statements(cf. People v Dunlap, 51 AD3d943, 944 [2008], lv denied 10 NY3d 958 [2008]). The remaining arguments havebeen considered and found to lack merit.
Cardona, P.J., Mercure, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.