| People v Lewis |
| 2011 NY Slip Op 02967 [83 AD3d 1206] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KansinyaLewis, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 25, 2009, upon a verdict convicting defendant of the crime of endangering thewelfare of a child.
In September 2007, defendant's parents and two siblings arrived at her home for a lateafternoon visit. Defendant's boyfriend, codefendant Dejon Moore, was also staying with her.Defendant's family greeted her two-year-old daughter and asked to see her 11-month-olddaughter (hereinafter the victim). Defendant stated that the victim was sick and in her crib.Defendant's parents and 12-year-old sister then entered the victim's room and found the normallyactive baby unresponsive to communication, clenching her fists in pain, unable to hold her headup, and bruised on the face and forehead. Defendant's parents immediately informed defendantthat they were taking the victim to the hospital.
Defendant seemed surprised by the victim's condition and told her parents, as well as theemergency room nurse and physician, that she had taken the victim to another hospital earlierthat day, where the baby was diagnosed with a fever and sent home. The emergency room staffdetermined that the victim had suffered a traumatic brain injury and, unable to confirm thatdefendant had taken her to a hospital earlier that day, contacted Child Protective Services. The[*2]victim was transferred to Albany Medical Center, where shepresented as critically ill and in danger of dying from injuries that had been inflicted within thelast two days and were consistent with shaken baby syndrome.
In response to police questioning regarding the victim's injuries, defendant stated that thebaby had fallen off a bed five days earlier, sustaining bruises to her face. She also admitted to hermother that she had lied about taking the victim to the hospital earlier in the day. A ChildProtective Services caseworker, Karlene Casso, thereafter questioned Moore, who similarlyindicated that the victim's bruises resulted from a fall. Moore admitted to Casso and police,however, that he shook the baby at approximately 5:00 a.m. that morning because she had beencrying and he was angry that defendant did not attend to her.
Defendant was charged in an indictment with endangering the welfare of a child, and Moorewas charged with assault in the first degree and reckless assault of a child. Following a jury trialduring which defendant's parents and siblings testified for the prosecution, defendant was foundguilty as charged, and Moore was found guilty of reckless assault of a child. Defendant wassentenced to one year in jail. Defendant appeals, and we now affirm.
Initially, we reject defendant's argument that the evidence was legally insufficient to sustainher conviction. As relevant here, a person has endangered the welfare of a child when he or shehas "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfareof a child" (Penal Law § 260.10 [1]). Endangering the welfare of a child is "defined by therisk of injury produced by defendant's conduct"; "a defendant must simply be aware thatthe conduct may likely result in harm to a child, whether directed at the child or not" (Peoplev Johnson, 95 NY2d 368, 372 [2000]; see People v Hitchcock, 98 NY2d 586,590-591 [2002]; People v Kennedy,75 AD3d 766, 768 [2010], lv denied 15 NY3d 853 [2010]). Here, defendant's familytestified that when they found the victim in her crib, it was immediately apparent that sherequired medical attention. While defendant seemed surprised and confused about the victim'scondition, she was aware that the victim was "sick" and informed herfamily—untruthfully—that she had already taken the victim to the hospital. Further,defendant provided similar misinformation to medical providers attempting to treat the child inan emergent situation. In light of the obvious nature of the victim's injuries, defendant's failure toseek medical attention for the child and the reasonable inferences that could be drawn fromdefendant's false explanations regarding the child's condition and prior treatment, "there is [a]valid line of reasoning and permissible inferences [that] could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial" (People v Bleakley,69 NY2d 490, 495 [1987]; see People vDickson, 21 AD3d 646, 648 [2005]; see also People v Steinberg, 79 NY2d 673,681-682 [1992]).
Similarly lacking in merit is defendant's argument that County Court erred in denying hermotion to suppress her statements to law enforcement personnel at the hospital and to Casso."[T]he safeguards required by Miranda are not triggered unless a suspect is subject to'custodial interrogation' [and] [t]he standard for assessing a suspect's custodial status is whether areasonable person innocent of any wrongdoing would have believed that he or she was not free toleave" (People v Paulman, 5 NY3d122, 129 [2005] [internal quotation marks and citations omitted]). Defendant was notrestrained in any way during the questioning by police at the hospital, which was investigatory innature and frequently interrupted as police inquired of defendant, her parents and medicalpersonnel. Indeed, defendant was permitted to leave the hospital after the questioning, while theinvestigating officers went to speak with Moore at the [*3]policestation. Under the circumstances, a reasonable person in defendant's position would havebelieved she was free to leave and, thus, her statements to police were properly admitted (see People v Brown, 77 AD3d1186, 1186-1187 [2010]; People vLowin, 71 AD3d 1194, 1196 [2010]; People v Stackhouse, 160 AD2d 822, 823[1990], lv denied 76 NY2d 865 [1990]). Moreover, inasmuch as there is no evidence thatCasso was "engaged in law enforcement activity or . . . acting under [the] directionor in cooperation with" police, defendant's statements to Casso cannot be deemed involuntary(CPL 60.45 [2] [b]; see People vTexidor, 71 AD3d 1190, 1191 [2010], lv denied 14 NY3d 893 [2010]; cf. People v Wilhelm, 34 AD3d40, 44-49 [2006]).
We further conclude that County Court properly denied defendant's motion for a severance.The motion was concededly untimely, and defendant failed to show good cause for the delay inmaking the motion (see CPL 255.10 [1] [g]; 255.20 [1], [3]; People v Wilburn, 50 AD3d 1617,1618 [2008], lv denied 11 NY3d 742 [2008]). In any event, as County Court determinedin addressing the merits of the motion, severance was unwarranted here because the respectivedefenses of defendant and Moore were not in irreconcilable conflict (see People vWilburn, 50 AD3d at 1618; Peoplev Funches, 4 AD3d 206, 207 [2004], lv denied 3 NY3d 640 [2004]). Theendangerment charge against defendant was based upon her failure to obtain medical treatmentfor the victim, and defendant claimed to be unaware of the victim's condition. That defense is notinconsistent with Moore's allegedly prejudicial statements to Casso that he had told police heshook the victim because the police needed to blame someone and he was trying to protectdefendant, particularly in light of his explanation to Casso that he did not see defendant doanything to hurt the baby and that "she was a good mother who [took] good care of her children."
Finally, inasmuch as Moore's statements to Casso do not implicate defendant in anywrongdoing, their admission did not deprive her of the right under the Sixth Amendment of theUS Constitution to confront the witnesses against her, despite Moore's decision not to testify(see People v Dickson, 21 AD3d at 647; People v Johnson, 224 AD2d 635[1996], lv denied 88 NY2d 849 [1996]). Even if we were to assume that the statementswere erroneously admitted, we would find that any error in this regard was harmless beyond areasonable doubt (see People v Dickson, 21 AD3d at 647; see also People v Lopez, 25 AD3d385, 386 [2006], lv denied 7 NY3d 758 [2006]; cf. People v Hardy, 4 NY3d 192, 198-199 [2005]).
Defendant's argument that she was denied a fair trial by an impartial jury and her assertionsregarding prosecutorial misconduct are unpreserved for our review and do not warrant reversal inthe interest of justice; her remaining contentions have been considered and found to be lacking inmerit.
Rose, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.