| People v Hershey |
| 2011 NY Slip Op 05303 [85 AD3d 1661] |
| June 17, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Barbara J.Hershey, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedDecember 5, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence to an indeterminate term ofimprisonment of 2 to 6 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict ofmanslaughter in the second degree (Penal Law § 125.15 [1]) for recklessly causing thedeath of her four-month-old step-grandson. Viewing the evidence in light of the elements of thecrime as charged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdictis against the weight of the evidence. It is undisputed that the victim sustained subduralhematomas, retinal hemorrhaging and cerebral edema, commonly referred to as the triadsymptoms indicative of shaken baby syndrome (SBS). The People's expert witnesses testifiedthat, in the absence of evidence of external trauma, those symptoms in a baby can be caused onlyby shaking the baby with great force. The People's experts further testified that there can be no"lucid interval" between the shaking and the baby's death or disability. Thus, because the victimlost consciousness while in the exclusive care of defendant, it was reasonable for the jury toconclude that defendant shook the victim, causing his death. Although defendant's expertschallenged the validity of SBS, it cannot be said on this record that the jury failed to give theevidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d490, 495 [1987]). " 'Where, as here, there was conflicting expert evidence concerning criminalresponsibility, the jury was free to accept or reject in whole or in part the opinion of any expert' "(People v Law, 273 AD2d 897, 898 [2000], lv denied 95 NY2d 965 [2000]), "atleast in the absence of a serious flaw in the expert's testimony" (People v Irizarry, 238AD2d 940, 941 [1997], lv denied 90 NY2d 894 [1997] [internal quotation marksomitted]).
We further conclude that County Court properly allowed the prosecutor to cross-examine adefense expert concerning statements made by a defendant in another case in which that experthad previously testified. Because those statements were not testimonial in nature (seegenerally [*2]Davis v Washington, 547 US 813, 822 [2006]),defendant's right to confront witnesses against her, as articulated by the Supreme Court inCrawford v Washington (541 US 36 [2004]), was not violated by that line of questioning(see generally People v Bradley, 8NY3d 124, 126 [2006]). Defendant failed to preserve for our review her further contentionthat the prosecutor's use of those statements on cross-examination of the defense expert violatedthe rule against hearsay (see CPL 470.05 [2]), and we decline to exercise our power toreview it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We agree with defendant, however, that the sentence is unduly harsh and severe. Defendant,who is 70 years old, has no prior criminal record and, as the People correctly concede, her crimewas not intentional in nature. We note that the victim's parents supported defendant throughoutthe proceedings and, at sentencing, they pleaded with the court not to incarcerate her. The parentsstated that a sentence of incarceration would only compound their tragedy and add to their grief.The court nevertheless sentenced defendant to the maximum punishment permitted by law, i.e.,an indeterminate term of imprisonment of 5 to 15 years. Although we are cognizant that aninnocent life has been lost at its infancy, we conclude that, under the circumstances of this case,an indeterminate term of imprisonment of 2 to 6 years is more appropriate. Thus, as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [b]), we modify the judgmentaccordingly. Present—Scudder, P.J., Fahey, Lindley, Green and Gorski, JJ.