| People v Matos |
| 2011 NY Slip Op 03112 [83 AD3d 529] |
| April 19, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Zahira Matos, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered September 15,2008, convicting defendant, after a jury trial, of murder in the second degree and two counts ofendangering the welfare of a child, and sentencing her to an aggregate term of 20 years to life,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Defendant was convicted of depraved indifference murder of achild (Penal Law § 125.25 [4]) in connection with the death of her approximatelytwo-year-old son, who was beaten to death by the codefendant, defendant's domestic partner.
It is undisputed that only the codefendant inflicted the fatal injuries, and that she did so solelyon the particular night the child died. There is no claim that defendant inflicted any of the injurieseither personally or while acting as an accessory under Penal Law § 20.00, or that any priorchild abuse contributed to the child's death. Defendant's liability was based entirely on her failureto perform the duty of obtaining medical attention for her injured child. In this extraordinarycase, that omission satisfied the requirements of depraved indifference murder under People v Suarez (6 NY3d 202[2005]) and People v Feingold (7NY3d 288 [2006]).
Both the sufficiency (see People v Sala, 95 NY2d 254, 260 [2000]) and the weight(see People v Noble, 86 NY2d 814, 815 [1995]) of the evidence are evaluated accordingto the court's jury instructions. Here, the court instructed the jury, without objection, that therisk-creating conduct may include an omission to perform a legally required act. In any event,that instruction was appropriate in the context of this case, because depraved indifference may bebased on a parent's egregious failure to prevent harm to his or her child (see People v Gratton, 51 AD3d1219, 1221 [2008], lv denied 11 NY3d 736 [2008]).
The evidence overwhelmingly established that defendant knew her son had sustaineddevastating, life-threatening injuries and was in severe pain. Nevertheless, she did not call anambulance or take her son to the hospital. Instead, she and the codefendant made worthlessefforts to treat the child with home remedies. Defendant otherwise ignored her child's injuriesover a period of seven hours. During this time, defendant made casual telephone calls without[*2]mentioning the child's injuries, drank beer and smoked, andthen went to sleep. She finally called 911 at or around the time the child died. Even then, shetook the time to dispose of potentially incriminating evidence before making the call.Furthermore, she admitted that she did not seek medical attention earlier because she was afraidof being blamed for the injuries. The fact that she deliberately placed her own interests ahead ofher son's need for emergency treatment is strong evidence that her omission evinced depravedindifference rather than mere recklessness or negligence.
Turning to defendant's other claims, we find that the court properly declined to receive experttestimony on abusive domestic relationships, including social and psychological factors relatingthereto. Defendant offered this evidence solely to explain why she did not end her relationshipwith the codefendant during the months leading up to the homicide, a period in which thecodefendant was abusing both defendant and the child. The indictment set forth a time frame forthe depraved indifference murder that included the two months leading up to the child's death.However, by the time of the trial the People had expressly limited themselves to the theory thatdefendant's liability was based solely on her failure to obtain medical attention for the child onthe particular night he died, rather than anything she did or omitted to do in the two precedingmonths. Accordingly, evidence explaining why she remained with the codefendant would havebeen irrelevant and potentially misleading (cf. People v Bryant, 278 AD2d 7 [2000],lv denied 96 NY2d 757 [2001]).
The proffered evidence was not rendered relevant by anything that occurred during the trial.While there were brief, peripheral background references to the events leading up to the child'sdeath, the prosecution never made any kind of a claim that defendant should have ended herrelationship with the codefendant.
To the extent that defendant is claiming that the expert testimony was relevant to any issueother than her failure to end the relationship, that claim is unpreserved and we decline to reviewit in the interest of justice. As an alternative holding, we find that defendant has similarly failedto establish any relevance for this evidence. In any event, regardless of whether the experttestimony was admissible on the proffered basis or any other basis, we find that such evidencecould not have affected the verdict. We also find no violation of defendant's constitutional rightto present a defense.
The court properly denied defendant's suppression motion in all respects. Defendant'sstatements made prior to Miranda warnings were not the product of custodialinterrogation, because a reasonable innocent person in defendant's position would not havethought she was in custody (see People v Yukl, 25 NY2d 585 [1969], cert denied400 US 851 [1970]; see also Stansbury v California, 511 US 318 [1994]).Throughout the pre-warnings period, the police did not restrain defendant in any way or doanything to convey that they had decided to make an arrest (see People v Dillhunt, 41 AD3d 216 [2007], lv denied 10NY3d 764 [2008]). While there were times that officers asked or instructed defendant to go orremain somewhere, these statements reasonably appeared, in context, to be the kind of requeststhat would be made to a mother of an injured child who is cooperating in an investigation, ratherthan directions given to a person in custody. The hearing evidence also established that all ofdefendant's statements were voluntary, as well as that defendant voluntarily consented to thesearch of her apartment.
We have considered and rejected defendant's claims that she received ineffective assistanceof counsel regarding the proffer of expert testimony, that the grand jury was [*3]improperly instructed, and that she did not receive proper notice ofthe theory of prosecution.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Mazzarelli,Acosta, Renwick and Freedman, JJ.