| People v Groth |
| 2010 NY Slip Op 02197 [71 AD3d 1391] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Matthew S.Groth, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedSeptember 5, 2008. The judgment convicted defendant, upon a jury verdict, of reckless assault ofa child and assault in the third degree.
It is hereby ordered that the judgment so appealed from is reversed on the facts, theindictment is dismissed and the matter is remitted to Monroe County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofreckless assault of a child (Penal Law § 120.02 [1]) and assault in the third degree(§ 120.00 [2]). Viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we agree with defendant that the verdict is against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Where, as here, adifferent finding from that reached by the jury would not have been unreasonable, we must "'weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " and, because we find that the juryfailed to give the evidence the weight it should be accorded, we set aside the verdict(id.).
The evidence presented at trial establishes that defendant's 2½-month-old baby wastaken to the hospital, where he was found to have bleeding in the brain and in the eyes as well astwo fractured ribs. The weight of the credible evidence and the reasonable inferences that may bedrawn therefrom do not support a finding that defendant caused injury to the baby. There wasevidence that the baby was exhibiting signs of distress, including having vomited two to threedays before defendant was alleged to have injured him. Contrary to the People's contention, wedo not view the statements of defendant to a police investigator as a confession that he causedthe baby's injuries. At most, defendant admitted that he may have set the baby down too hard ona "pack and play," but the medical evidence presented at trial does not establish dropping thebaby a foot or two onto a "pack and play" could have caused the injuries sustained by the baby.Rather, the medical testimony presented by the People established that a significant amount offorce would be required to cause the baby's injuries. In the absence of a confession by defendantto the police, the single statement by defendant to his girlfriend that he was the one who hurt the[*2]baby does not establish defendant's guilt. Indeed, weconclude that the jury engaged in impermissible speculation in finding defendant guilty, andfailed to give the evidence the weight it should be accorded on the issue whether defendantrecklessly caused physical injury to his baby (Penal Law § 120.00 [2]), or recklesslycaused serious physical injury to his baby's brain (§ 120.02 [1]). We therefore reverse thejudgment, dismiss the indictment and remit the matter to County Court for proceedings pursuantto CPL 470.45.
All concur except Fahey, J., who dissents and votes to affirm in the following memorandum.
Fahey, J. (dissenting). I respectfully dissent and would affirm the judgment. Upondetermining that an acquittal would not have been unreasonable, we must "weigh conflictingtestimony, review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions [and, b]ased on the weight of the credible evidence, [we must] thendecide[ ] whether the jury was justified in finding the defendant guilty beyond a reasonabledoubt" (People v Danielson, 9NY3d 342, 348 [2007]). Viewing the evidence in light of the elements of the crimes ofreckless assault of a child (Penal Law § 120.02 [1]) and assault in the third degree(§ 120.00 [2]) as charged to the jury, I conclude that the jury was justified in findingdefendant guilty of those crimes beyond a reasonable doubt based, inter alia, on evidenceconcerning injuries sustained by defendant's infant son, including two rib fractures and cranialhemorrhaging. In addition, the People presented at trial a videotaped police interview ofdefendant in which he admitted that he once made a mental note that he may have set the infantdown too hard and that the only logical explanation for the infant's injuries was the manner inwhich defendant set down the infant. At another point during the interview, defendant rejectedthe interviewer's suggestion that the infant's mother hurt the infant and, shortly before theconclusion of the interview, defendant explicitly acknowledged that he hurt the infant when heset the infant down on a Saturday morning. The indictment alleged that the infant was injured ona Saturday and, in my view, defendant's admissions during the interview were tantamount to aconfession. The aforementioned evidence, coupled with the evidence that defendant admitted tothe infant's mother that he could not see the infant because he "was the one that hurt him,"compels the determination that "the jury was justified in finding the defendant guilty beyond areasonable doubt" (Danielson, 9 NY3d at 348). Present—Smith, J.P., Centra,Fahey, Green and Pine, JJ.