| People v Abdul |
| 2010 NY Slip Op 06376 [76 AD3d 563] |
| August 10, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Khairul Abdul, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello and Michael J.Miller of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs,J.), rendered December 12, 2007, convicting her of murder in the second degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress her statements to lawenforcement officials.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish beyonda reasonable doubt that the defendant, acting personally or in concert with another, by heractions or her failure to act upon a legally imposed duty, committed the crime of murder in thesecond degree as defined in Penal Law § 125.25 (4).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
We disagree with the defendant's assertion that, prior to waiving her Miranda rights(see Miranda v Arizona, 384 US 436 [1966]) and making certain inculpatory statements,she was denied the right to counsel (see generally People v Grice, 100 NY2d 318, 321[2003]). Accordingly, we uphold the denial of that branch of her omnibus motion which was tosuppress those statements.
However, the defendant is entitled to a new trial because the County Court erred in failing toproperly respond to a critically important note from the jury. In this case, the People theorizedthat the defendant committed the murder of her young child either personally or by acting inconcert with the child's father, and that her culpable conduct consisted either of her actions or her[*2]failure to perform a legally imposed duty owed by her to herchild. The jury was given instructions on these various theories. During deliberations, the jurysent out a note asking: "Can a person be considered 'in concert' by doing nothing to cause thedeath of the victim except for not doing anything after the death (Such as calling police, hospital,etc.)." Over the defendant's objection, the County Court reread its original instructions onaccessory liability, criminal liability based upon a person's failure to perform a legally imposedduty, and the substantive law regarding the charged crime.
Pursuant to CPL 310.30, the trial court has an obligation to meaningfully respond to allquestions from the jury during deliberations (see People v Almodovar, 62 NY2d 126,131 [1984]; People v Malloy, 55 NY2d 296, 301 [1982], cert denied 459 US 847[1982]). Although simply rereading the original instructions may, under the appropriatecircumstances, constitute a meaningful response (see People v Malloy, 55 NY2d at 302),in this case it was error for the County Court to respond to the jury's question by simplyrereading its original jury instructions which led to the jury's confusion (see People vChessman, 75 AD2d 187 [1980]; People v Botteri, 50 AD2d 540 [1975]; Peoplev Gonzalez, 293 NY 259 [1944]; see also Schwabach v Beth Israel Med. Ctr., 72AD2d 308, 312 [1980]). Rather, the County Court should have explained to the jury that any actor omission by the defendant after the victim had already died could not form the basis of afinding of guilt (see People v Dlugash, 41 NY2d 725, 731 [1977] ["Man dies but once"]),and that the People bear the burden of proving beyond a reasonable doubt that the victim wasalive when the alleged crime was committed (id. at 731). The time of death was a heavilylitigated issue in this case, and failing to respond appropriately to the jury's question may haveallowed the jury to improperly convict the defendant solely for conduct which occurred after thevictim had already died.
We also address several contentions raised by the defendant which are likely to arise in anew trial.
The County Court should have permitted the defendant to introduce, for the truth of thematter asserted, the hearsay statement of her codefendant in which he admitted to killing thevictim. Although the defendant is only able to offer the statement as hearsay within hearsay, thestatement satisfies the requirements for a statement against penal interest as to the first level ofhearsay (see People v Shortridge, 65 NY2d 309, 312 [1985]; People v Brown, 26NY2d 88, 94 [1970]), and indicia of trustworthiness exist in this case which would allow thestatement to be introduced into evidence for its truth (see Chambers v Mississippi, 410US 284, 302 [1973]; see also People v Settles, 46 NY2d 154, 169-170 [1978]; Peoplev Smith, 195 AD2d 112, 125 [1994]).
Additionally, although the expert testimony regarding "child abuse syndrome" waspermissible pursuant to People v Molineux (168 NY 264 [1901]) to demonstrate that thefatal injury was not accidentally inflicted (see People v Henson, 33 NY2d 63, 74 [1973];People v Pope, 241 AD2d 756 [1997]), it was improper for the prosecution to introducetestimony that child abuse syndrome was the cause of death under the circumstances of this case,where the prosecution's medical experts testified that a discrete injury (a brain stem injury)caused the victim's death. This was not a case where the prosecution's theory was that thecumulative effect of numerous minor injuries caused the victim's death (cf. Bryant vLord, 2007 WL 3284629, *2 n 4, 2007 US Dist LEXIS 82147, *5 n 4 [SD NY 2007] ["Theautopsy specifically found that the cause of death was child abuse syndrome and that no singleinjury caused the child's death"]).
The defendant's remaining contentions either are without merit or have been renderedacademic in light of our determination. Santucci, J.P., Angiolillo, Dickerson and Austin, JJ.,concur.