| People v Santiago |
| 2012 NY Slip Op 09200 [101 AD3d 1715] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jessica L.Santiago, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered October3, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byreducing the conviction of murder in the second degree under the first count of the indictment (PenalLaw § 125.25 [2]) to manslaughter in the second degree (§ 125.15 [1]) and vacating thesentence imposed on that count, and by reversing that part convicting defendant of murder in thesecond degree under the second count of the indictment (§ 125.25 [4]) and dismissing that countand as modified the judgment is affirmed, and the matter is remitted to Monroe County Court forsentencing on the conviction of manslaughter in the second degree.
Memorandum: On appeal from a judgment convicting her upon a jury verdict of two counts ofmurder in the second degree (Penal Law § 125.25 [2], [4] [depraved indifference, depravedindifference with victim less than 11 years old, respectively]), defendant contends that the conviction isnot supported by legally sufficient evidence. We note at the outset that defendant does not on appealdispute that the evidence is legally sufficient to establish that she acted recklessly, but instead contendsthat the evidence is legally insufficient to establish that she acted with depraved indifference to humanlife. We agree. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally insufficient to provebeyond a reasonable doubt that defendant "acted with the culpable mental state of depravedindifference" (People v Swinton, 7 NY3d776, 777 [2006], rearg denied 7 NY3d 864 [2006]). The evidence established thatdefendant, at around 4:00 p.m., suffocated her almost two-year-old son who was crying by placing acomforter over his face and then leaving the room after he "passed out." Defendant did not return to herson's room until late the next morning, which was almost 19 hours later. At trial, the People proceededon the theory that defendant acted with depraved indifference in that she "abandon[ed] a helpless andvulnerable victim in circumstances where the victim is highly likely to die" (People v Suarez, 6 NY3d 202, 212[2005]). We conclude, however, that the evidence is legally insufficient to establish that defendant'sactions "r[o]se to the level of 'wickedness, evil or inhumanity' so 'as to render the actor as culpable asone whose conscious objective is to kill' " (People v Matos, 19 NY3d 470, [*2]476[2012], quoting Suarez, 6 NY3d at 214). We therefore modify the judgment by reducing theconviction of murder in the second degree under the first count of the indictment (§ 125.25 [2])to manslaughter in the second degree (§ 125.15 [1]) and vacating the sentence imposed on thatcount (see CPL 470.15 [2] [a]), and we remit the matter to County Court for sentencing onthe conviction of manslaughter in the second degree (see CPL 470.20 [4]). We further modifythe judgment by reversing that part convicting defendant of murder in the second degree under thesecond count of the indictment (Penal Law § 125.25 [4]). We dismiss that count of theindictment rather than reducing it, however, inasmuch as manslaughter in the second degree is not alesser included offense of that count (see People v Robinson, 278 AD2d 798, 798 [2000],lv denied 96 NY2d 762 [2001]). In light of our determination that the evidence is legallyinsufficient, we do not address defendant's contention that the verdict is against the weight of theevidence, which is also based on her contention that she did not act with depraved indifference.
In addition, defendant contends that she was denied a fair trial by prosecutorial misconduct onsummation. The vast majority of the alleged improprieties are unpreserved for our review becausedefendant either failed to object to them or she raised only general objections (see CPL470.05 [2]; People v Brown, 94 AD3d1461, 1462 [2012], lv denied 19 NY3d 995 [2012]). In any event, we conclude thatdefendant's contention is without merit. Many of the comments were " 'either a fair response to defensecounsel's summation or fair comment on the evidence' " (People v Green, 60 AD3d 1320, 1322 [2009], lv denied 12NY3d 915 [2009]). Although we agree with defendant that the prosecutor improperly characterizedcertain testimony of the Medical Examiner, we conclude that the court's curative instruction alleviatedany prejudice (see People v Bowen, 60AD3d 1319, 1320 [2009], lv denied 12 NY3d 913 [2009]). Moreover, while there wasno basis for the prosecutor to suggest that defendant must have smelled the body decomposing in herhome, that comment was not so egregious as to deprive defendant of a fair trial (see People v Gutierrez, 96 AD3d1455, 1456 [2012], lv denied 19 NY3d 997 [2012]; People v Szyzskowski, 89 AD3d 1501, 1503 [2011]). We rejectdefendant's further contention that she received ineffective assistance of counsel based on defensecounsel's failure to object to the allegedly improper comments made by the prosecutor (see People v Lyon, 77 AD3d 1338,1339 [2010], lv denied 15 NY3d 954 [2010]; cf. People v Fisher, 18 NY3d 964, 966-967 [2012]).
We reject defendant's contention that the court erred in denying her request for a missing witnesscharge. Two police investigators were in the interview room when defendant gave a written statement,and one of those investigators testified at trial and read defendant's statement into evidence. Thetestimony of the other investigator, who was not called to testify, would have been cumulative, and thusa missing witness charge was inappropriate (see People v Hawkins, 84 AD3d 1736, 1737 [2011], lv denied17 NY3d 806 [2011]; People v Duda,45 AD3d 1464, 1466 [2007], lv denied 10 NY3d 764 [2008]; see also People vBuckler, 39 NY2d 895, 897 [1976]; see generally People v Gonzalez, 68 NY2d 424,427-428 [1986]). Defendant's contention that the court failed to provide a meaningful response to thejury's request for clarification of a certain jury instruction is not preserved for our review (see People v Swail, 19 AD3d 1013,1013 [2005], lv denied 6 NY3d 759 [2005], lv denied on reconsideration 6 NY3d853 [2005]). In any event, her contention is without merit. Under the circumstances of this case, thecourt's rereading of the instruction constituted a meaningful response (see CPL 310.30; People v Santi, 3 NY3d 234, 248[2004]). Present—Centra, J.P., Peradotto, Sconiers, Valentino and Martoche, JJ.