| People v James |
| 2010 NY Slip Op 01667 [70 AD3d 1052] |
| February 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BrianJames, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The four-year-old victim lived in an apartment in Dutchess County with his mother and themother's boyfriend, the defendant. On August 8, 2007, the victim's mother left for work at about5:00 p.m. When she returned, the victim was lying on his bed motionless with his eyes open,looking straight ahead. She yelled at the victim to wake up, while the defendant attempted cardiopulmonary resuscitation (hereinafter CPR). She rushed the victim to the hospital, where he waspronounced dead. The autopsy revealed that the victim suffered multiple contusions, abrasions,and lacerations on his head. An internal examination revealed multiple areas of hemorrhage onthe surface of the victim's brain, and lacerations in his liver and pancreas. The defendantadmitted to the police: "maybe I roughhoused a little bit too much with him."
At trial, the defendant's medical expert initially testified that the victim's abdominal injurieswere consistent with an attempt to perform the Heimlich Maneuver or CPR, but he admitted oncross-examination that these were probably not the causes of the victim's injuries. The expertfurther conceded that, if this case had happened in his jurisdiction, he would have concluded, toa reasonable degree of medical certainty, that the victim had died as the result of a homicide. Thedefendant asked the County Court to charge the jury with manslaughter in the second degree as alesser-included offense of depraved indifference murder of a person less than 11 years old, andthe County Court denied the motion.
The jury convicted the defendant of murder in the second degree, and this appeal ensued.
The defendant contends that the County Court erred in denying his request to charge the jurywith manslaughter in the second degree (Penal Law § 125.15) as a lesser-included offenseof depraved indifference murder of a person less than 11 years old (Penal Law § 125.25[4]). However, [*2]viewed in the abstract, it is theoreticallypossible to commit the crime of depraved indifference murder pursuant to Penal Law §125.25 (4) without also committing the crime of manslaughter in the second degree (seePeople v Mora, 57 AD3d 571, 572 [2008]; People v Heslop, 48 AD3d 190, 195-196[2007]; People v Robinson, 278 AD2d 798 [2000]). Therefore, the County Courtproperly denied the request.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7 NY3d 633 [2006]). Dillon, J.P., Covello, Millerand Chambers, JJ., concur.