| People v Mitchell |
| 2012 NY Slip Op 02730 [94 AD3d 1252] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Varrel E.Mitchell, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered August 14, 2003, upon a verdict convicting defendant of the crimes of assault in thesecond degree, reckless endangerment in the first degree and endangering the welfare of a child.
When defendant picked up his twin nine-month-old daughters from their mother for a visit,they were healthy. After he returned them two days later, the mother noticed that one daughter(hereinafter the victim) was acting unusual and brought her to obtain medical attention. X raysrevealed that both of the victim's tibias and fibulas were broken near the ankles. Defendantadmitted to a detective that defendant had hit the victim hard three or four times on the legsbecause he was angry and frustrated by her crying. Defendant also admitted that, since her birth,he had hit the victim about 20 times for the same reason. Defendant further informed thedetective that he had swung the victim around by her legs a few months earlier, first stating thathe did so because he did not want her to be afraid of heights and later stating that he was justplaying with her. He explained that he would alternately swing her and hold her to his chest, for atotal of 10 to 15 minutes, and demonstrated his technique with a doll. This demonstration wasmemorialized on videotape.
Defendant was charged with assault in the second degree, reckless endangerment in the firstdegree and endangering the welfare of a child. Following trial, he was convicted of all [*2]counts. County Court sentenced him to a prison term of seven yearsfollowed by five years of postrelease supervision for the assault count, a consecutive prison termof 3½ to 7 years for the reckless endangerment count and a concurrent jail term of one yearfor endangering the welfare of a child. Defendant appeals.
The indictment was sufficient to apprise defendant of the charges against him. "Anindictment count which incorporates by reference the statutory provision applicable to thecharged crime sufficiently alleges all of the elements of that crime, rendering the count valid" (People v Downs, 26 AD3d 525,526 [2006], lv denied 6 NY3d 847 [2006]; accord People v Binns, 82 AD3d 1449, 1450 [2011]). Each counthere listed the Penal Law section and statutory text of the alleged offense, as well as a factualexplanation of how defendant committed the listed offense. The second and third counts were notdefective merely because they did not repeat the mens rea in the factual allegations, as therequired mental state was included elsewhere in the count.
County Court did not err in amending the first count by deleting the word "attempt." Theinclusion of that word was a typographical error, the grand jury had been asked to consider andvote on assault in the second degree, the evidence before the grand jury supported that charge,the Penal Law section listed in the indictment was for that offense and not an attempted assault,and the evidence at trial established a completed assault. The amendment did not change thePeople's theory of the crime and defendant was not prejudiced by the amendment (seeCPL 200.70 [1]; People v Spann, 56 NY2d 469, 473 [1982]).
County Court properly denied defendant's pretrial motions to dismiss the indictment andsuppress his statements. The record fails to support any of defendant's arguments that theintegrity of the grand jury was impaired. At the suppression hearing, defendant conceded that hewas not in custody when he made the statements to the police. The detective's testimony, whichthe court found credible, established that defendant voluntarily drove himself to the policestation, agreed to speak with the detective, waived his Miranda rights, was neverthreatened or confined, made oral statements, corrected and signed a written statement, agreed todemonstrate on videotape how he swung the victim, was not arrested at that time and left thestation after giving his statements. Defendant argues that he was coerced, and that the writtenstatement and videotape are fake, but he did not testify at the hearing or support these argumentswith other evidence. The hearing evidence supports the court's determination that defendant'sstatements were voluntary (see People vDavis, 18 AD3d 1016, 1017 [2005], lv denied 5 NY3d 805 [2005]). Thus, thecourt properly denied defendant's pretrial motions.
The verdict was not against the weight of the evidence.[FN*] We reach this determination after conducting an independent review of the evidence in a neutrallight, according deference to the jury's credibility determinations (see People v Fuller, 50 AD3d1171, 1174 [2008], lv denied [*3]11 NY3d 788[2008]). To prove assault as alleged, the People needed to prove that defendant was over 18 yearsold, the victim was less than seven, defendant intended to cause her physical injury and he causedher such injury (see Penal Law § 120.05 [9]). The ages were uncontested. Thevictim's mother testified that the victim's legs were not injured prior to her visit with defendant,but the mother noticed suspected injuries shortly after defendant returned the victim. Medicalproof established that the victim suffered two broken legs, consisting of four broken bones, andthat the injuries were not accidental. Defendant admitted hitting the victim hard on the legsduring the relevant time period, and that he did so because he was angry and frustrated by hercrying. He also admitted hitting her and swinging her by the legs at other times. Althoughdefendant contends that the medical proof contradicts the People's theory of how he inflicted theinjuries, the People were not required to establish exactly what defendant did to break thevictim's bones; the manner of injury is not an element of the offense. In any event, physicianstestified that the injuries could have been inflicted by a hard chopping motion to the legs or byswinging the victim by the ankles as shown in the videotape. The weight of the evidence supportsthe conviction for assault in the second degree (see People v Ciccone, 90 AD3d 1141, 1144 [2011]).
To establish reckless endangerment in the first degree, the People had to prove that, "undercircumstances evincing a depraved indifference to human life, [defendant] recklessly engage[d]in conduct which create[d] a grave risk of death to another person" (Penal Law § 120.25).A person acts recklessly where he or she "is aware of and consciously disregards a substantialand unjustifiable risk that [a] result will occur or that [a particular] circumstance exists," andwhere the disregard of such risk "constitutes a gross deviation from the standard of conduct that areasonable person would observe in the situation" (Penal Law § 15.05 [3]). Mens rea canbe established by circumstantial evidence, including the defendant's actions or the surroundingcircumstances (see People v Molina,79 AD3d 1371, 1376 [2010], lv denied 16 NY3d 861 [2011]; People v Manos, 73 AD3d 1333,1334 [2010], lv denied 15 NY3d 807 [2010]). Although the law on depraved indifferencehas changed since defendant's conviction, we must review the weight of the evidence based onthe elements as charged to the jury without objection (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Snyder, 91 AD3d 1206,1212-1213 [2012]). In his statement and on the videotape, defendant admitted that he swung thevictim by the ankles for up to 15 minutes when she was four or five months old. A pediatricneurosurgeon testified, after watching the videotape, that swinging a child of that age in such amanner could injure the brain or spinal cord, cause bleeding inside the head and even be fatal.The jury viewed the videotape multiple times. Although defendant, in his statements, gavevarying reasons for swinging the child, the jury could choose to disbelieve his purported reasons(see People v Smith, 89 AD3d1148, 1149 [2011]) or, even if it accepted them, determine objectively that his conduct wasreckless and evinced a depraved indifference to the life of his infant child (see People vParrotte, 267 AD2d 884, 886 [1999], lv denied 95 NY2d 801 [2000]). The recklessendangerment conviction was not against the weight of the evidence (see People vSnyder, 91 AD3d at 1213; People vGraham, 14 AD3d 887, 889 [2005], lv denied 4 NY3d 853 [2005]).
Defendant's statements admitting that he hit the victim hard because he was angry, alongwith medical proof of her injuries, established that he "knowingly act[ed] in a manner likely to beinjurious to the physical, mental or moral welfare" of his child (Penal Law § 260.10 [1]).Hence, the conviction for endangering the welfare of a child was not against the weight of theevidence (see People v Lewis, 83AD3d 1206, 1207 [2011], lv denied 17 NY3d 797 [2011]).[*4]
Defendant's remaining contentions have been consideredand found lacking in merit.
Mercure, J.P., Lahtinen, Spain and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant did not preserve hisargument that the evidence was legally insufficient, as he declined County Court's offer to makea motion to dismiss after the People rested (see People v McCoy, 89 AD3d 1218, 1221 n 3 [2011]).Nevertheless, we evaluate the sufficiency of the evidence as part of our review of the weight ofthe evidence (People v Dancy, 87AD3d 759, 760 [2011]).