| People v Sergio |
| 2012 NY Slip Op 06626 [99 AD3d 734] |
| October 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LauraSergio, 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 (Marrus, J.),rendered December 6, 2010, convicting her of manslaughter in the first degree, after a nonjurytrial, and imposing sentence. By decision and order on motion dated December 8, 2010, thisCourt granted the defendant's motion to stay execution of the judgment pending hearing anddetermination of the appeal.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and thematter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in itsdiscretion pursuant to CPL 160.50.
This appeal involves the tragic death of a newborn child. On the evening of April 6, 2007,the defendant gave birth to an infant girl in a bathroom of the home she shared with her parentsand two adult sisters. After the infant was born, she was wrapped in a towel and placed in aplastic bag, and the bag was placed outside of the home inside a garbage bag. At approximately9:40 p.m., the defendant was taken to the hospital by emergency medical services (hereinafterEMS) after she was found bleeding in the bathroom. Early the next morning, at approximately3:00 a.m., the police arrived at the defendant's home and discovered, on the back porch, severallarge garbage bags containing various bloody sheets and towels. The police found the infant'sbody inside one of the bags. The infant was taken by ambulance to the hospital and wassubsequently pronounced dead.
Thereafter, the defendant was charged with murder in the second degree, manslaughter in thefirst degree, manslaughter in the second degree, and endangering the welfare of a child. Thedefendant was convicted, after a nonjury trial, of manslaughter in the first degree (seePenal Law § 125.20 [4]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15; People v Romero, 7 NY3d 633 [2006]), we find that the verdict ofguilt of manslaughter in the first degree was against the weight of the evidence. In conducting ourweight-of-the-evidence analysis, we must first determine, based upon the credible evidence,whether [*2]a different result would have been unreasonable and,if it would not have been, then we must " 'weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Danielson, 9 NY3d 342, 348 [2007]).
Applying this standard of review to the proof adduced at trial, we determine, in the firstinstance, that an acquittal on the charge of manslaughter in the first degree would not have beenunreasonable (see People v Romero,7 NY3d 633 [2006]). Moreover, weighing the evidence adduced at trial, in light of thenumerous gaps in their proof, we find that the People failed to provide a credible foundation forthe defendant's conviction.
The evidence adduced at trial demonstrated that, after the defendant was found bleeding inher home, the defendant was taken to the hospital by EMS. The doctors and nurses who treatedthe defendant at the hospital testified that the defendant was asked, at various stages of hermedical treatment, if she was pregnant. Each time the defendant answered that she was not, thatshe did not know she was pregnant, and that she had no recollection of the birth. During the firstfew hours of her hospitalization, the defendant's examining physician had the "initial impression"that the defendant had an early miscarriage. It was not until the placenta was recovered andexamined that the medical examiner determined that a full-term infant had been born.
The medical examiner testified, based on her autopsy of the infant, that the infant was bornfull-term and was alive when her umbilical cord was cut, and that there were no bruises on theinfant's body. The medical examiner's initial opinion was that the infant died due to asphyxia and"hypothermia due to her exposure to cold environmental temperature." Ultimately, the medicalexaminer revised her initial opinion and determined that the cause of the infant's death wasasphyxia by smothering. The medical examiner explained that she came to this conclusion basedupon, inter alia, a hearsay statement made to her by a police officer who found the infant's bodyat the defendant's home, and hearsay statements contained in a report given to her regarding theinvestigation. However, the medical examiner could not determine whether the infant was alivewhen she was wrapped in the towel or at what time the infant had died.
At the close of all the evidence, the prosecutor essentially asked the factfinder to infer that,since the defendant gave birth to the infant and the infant was discovered in a plastic garbage bagwhile wrapped in a towel, the defendant, intending to cause physical injury, recklessly engaged inconduct which created a grave risk of serious injury to the infant, thereby causing the infant'sdeath. The theory of the prosecution's case was that, after the defendant gave birth to the infant,she cut the infant's umbilical cord and smothered the infant by placing the baby into a towel.However, the evidence adduced at trial did not establish, beyond a reasonable doubt, that it wasthe defendant who engaged in that conduct. The People's evidence did not eliminate thepossibility that it was one or more of the four other individuals who lived with the defendant whowere the culpable actors in the events which precipitated the infant's death. All of theseindividuals, the defendant's parents and two adult sisters, had equal and unfettered access to theinfant on the evening the defendant gave birth to her. The evidence did not establish whattranspired during the more than five hours that elapsed between the time that the defendant wastaken to the hospital and the time that the police arrived at the defendant's home and discoveredthe infant's body. The evidence did not establish the time of the infant's death. The evidence didnot establish when the infant was wrapped in the towel and placed in the plastic bag, when thatbag was placed outside of the defendant's home inside a garbage bag, and, critically, whowrapped the infant in the towel, placed her in the plastic bag, and then placed that bag outside ofthe defendant's home inside a garbage bag. Furthermore, the People failed to show how thedefendant could have removed the infant's body from the home, since an EMS worker testifiedthat when she arrived at the defendant's home, the defendant was unable to walk on her own andhad to be lifted out of the house on a stair chair. Based on the record before us, it cannot bedetermined who caused the infant's death.
We find that the evidence does not credibly support the defendant's conviction of [*3]manslaughter in the first degree beyond a reasonable doubt.Accordingly, we reverse the judgment of conviction as against the weight of the evidence (see People v Nisthalal, 87 AD3d702 [2011]; People vFortunato, 70 AD3d 851 [2010]; People v Zephyrin, 52 AD3d 543 [2008]; People vGiocastro, 210 AD2d 254 [1994]).
In light of our determination, we need not consider the defendant's remaining contentions.Rivera, J.P., Leventhal, Belen and Roman, JJ., concur.