| People v Santiago |
| 2011 NY Slip Op 06359 [87 AD3d 707] |
| August 23, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nixzaliz Santiago, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffeeof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango,J.), rendered November 12, 2008, convicting her of manslaughter in the first degree, assault inthe second degree (two counts), unlawful imprisonment in the second degree, and endangeringthe welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law and the facts, by vacating the conviction ofassault in the second degree as charged in the fourth count of the indictment, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The defendant was convicted of, inter alia, manslaughter in the first degree and assault in thesecond degree (two counts) of her daughter, seven-year-old Nixzmary Brown, one of thedefendant's six children, all of whom lived with her and her husband, Cesar Rodriguez. Therewas ample evidence adduced at trial that Nixzmary suffered significant child abuse during herlife. The People presented the defendant's various oral and videotaped statements to the policewherein she stated, inter alia, that Rodriguez had beaten Nixzmary on various occasions with hishands, a belt, and a ruler, inflicting noticeable bruises; that Nixzmary was kept in a room separatefrom the other children and sometimes was tied or taped to a chair; and that in November 2005the defendant pushed Nixzmary to the floor, causing a cut to her forehead which requiredsuturing at a hospital emergency room to close the wound.
The defendant further admitted that sometime between January 10, 2006, and January 11,2006, she told her already enraged husband that Nixzmary had broken his printer, andencouraged him to question the child. She stated that shortly thereafter, Rodriguez hit Nixzmary,carried her to the bathtub, took off her clothes, and held her head under a stream of cold water.The defendant further stated that she then attended to one of her other children and that, afterhearing "like loud banging [noises]" coming from the bathroom, she saw Rodriguez takeNixzmary out of the bathroom, and place her naked onto a bedroom floor. The child was left inthis position for an additional two hours before the defendant came back to check on her,whereupon the child was discovered to be cold, moving slightly, and moaning. Although thedefendant stated that she then [*2]tried to warm Nixzmary bydressing her in a sweater and pants and placing her next to a heater, she again left the childwithout summoning medical assistance or rendering any other aid. When the defendant nextlooked in on Nixzmary, the child was not breathing. The People's expert testified at trial thatNixzmary died from a blunt force trauma to the head, which caused a subdural hematoma. Hefurther opined that the hematoma occurred about two days before the child died.
Viewing the evidence in the light most favorable to the prosecution (see People v Danielson, 9 NY3d342, 349 [2007]), we find that it was legally sufficient to establish the defendant's guilt ofmanslaughter in the first degree beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633, 643 [2006]).
Contrary to the defendant's contention, there was sufficient evidence to support herconviction of assault in the second degree as charged in the fifth count of the indictment, basedupon the November 2005 incident in which the child sustained injury as a result of being thrownto the floor. Although the defendant gave contradictory accounts as to how the child sustainedthis injury, in light of the totality of the testimony at trial, the jury was warranted in rejecting theaccount in which the defendant claimed that this injury occurred when the child accidentally fell(see People v Bracey, 41 NY2d 296, 301 [1977]; People v Spurgeon, 63 AD3d 863, 864 [2009]; see generally People v Wilson, 49AD3d 673, 674 [2008]; People vBisono, 37 AD3d 844, 845 [2007]).
Furthermore, the injury constituted a "serious physical injury" within the meaning of thePenal Law, since there was evidence that it resulted in "protracted disfigurement" (Penal Law§ 10.00 [10]). In particular, the defendant herself stated that the laceration initially had tobe closed with sutures and that, thereafter, it did not properly heal. Nevertheless, the child did notreceive any further treatment for this injury, and the defendant further indicated that one monthlater, the wound appeared infected and "got so ugly" that it caused the child's face to swell. Inaddition, review of the autopsy photographs reveals that the laceration was still clearly visibleand unhealed at the time of the child's death. Accordingly, given this evidence, and especiallyconsidering the prominent location of the wound on the face of a young girl, it is apparent thathad the child lived, the injury would have resulted in a readily observable protracteddisfigurement, and thus it constituted a serious injury within the context of the crime of assault inthe second degree (see Penal Law § 120.05 [8]; Penal Law § 10.00; see generally People v Irwin, 5 AD3d1122 [2004]; People v Gagliardo, 283 AD2d 964 [2001]; People v Perez,184 AD2d 1033 [1992]; see also Peoplev McKinnon, 15 NY3d 311 [2010]). Moreover, under the circumstances of this case, wereject the defendant's claim that the People did not prove the element of protracted disfigurementbecause the child died approximately six weeks after the injury was inflicted (see generally People v Perkins, 15NY3d 200, 204-205 [2010]).
The defendant correctly contends that she was improperly convicted of assault in the seconddegree, as charged in the fourth count of the indictment, based upon an injury which occurredwhen Nixzmary allegedly was tied up with a bungee cord. Based upon this Court's independentview of the grand jury minutes, the defendant was not indicted for assault in the second degreeunder the fourth count based upon such conduct. Therefore, we dismiss the fourth count of theindictment (see People v Roberts, 72 NY2d 489 [1988]; People v Patterson, 39NY2d 288, 294-295 [1976], affd 432 US 197 [1977]; People v Gachelin, 237AD2d 300 [1997]; People v Powell, 153 AD2d 54, 58 [1989]).
The Supreme Court properly imposed consecutive sentences on the manslaughter and theassault convictions (see Penal Law § 70.25; People v McKnight, 16 NY3d 43 [2010]).
The remaining sentences imposed are not excessive (see People v Thompson, 60NY2d 513, 519 [1983]; People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Belen, Sgroi andMiller, JJ., concur.