| People v Brandi E. |
| 2013 NY Slip Op 02867 [105 AD3d 1341] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vBrandi E., Also Known as Brandi G., Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel),for respondent.
Appeal from an adjudication of the Supreme Court, Onondaga County (John J.Brunetti, A.J.), rendered May 18, 2009. Defendant was adjudicated a youthful offenderupon a jury verdict finding her guilty of endangering the welfare of a child.
It is hereby ordered that the adjudication so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a youthful offender adjudication upon a juryverdict finding her guilty of endangering the welfare of a child (Penal Law §260.10 [1]). We note as background that, in a prior trial concerning the same indictment,the jury acquitted defendant of two counts of assault in the first degree undercircumstances evincing a depraved indifference to human life (§ 120.10 [3]), eachof which arose from a separate incident. The jury, however, convicted defendant of athird count of that offense, which arose from a third incident, and one count ofendangering the welfare of a child (§ 260.10 [1]), which was based upon all threeincidents. Supreme Court vacated the conviction upon a subsequent CPL article 440motion and directed a new trial upon the remaining assault in the first degree count andthe endangering the welfare of a child count. Prior to the new trial, which is at issue here,defendant apparently moved to preclude the prosecution from presenting any evidencewith respect to the two incidents that were the bases for the assault charges of which shewas acquitted (two prior incidents) on the ground that admission of that evidence wasbarred by the doctrine of collateral estoppel. The court indicated that it would notpreclude evidence of the two prior incidents at that time, but would rule upon anyobjection made by defendant during the trial. The court, in effect, denied defendant'smotion when it permitted the People to introduce at the new trial evidence concerning thetwo prior incidents over defendant's objections.
Defendant contends that the court violated the doctrine of collateral estoppelwhen it permitted the People to introduce at the new trial evidence related to the assaultcharges of which she was acquitted, i.e., evidence of the two prior incidents. We rejectthat contention. "Collateral estoppel originally developed in civil litigation, but it is nowclear that the doctrine applies generally to criminal proceedings as well" (People vGoodman, 69 NY2d 32, 37 [1986]; see Ashe v Swenson, 397 US 436, 443[1970]). "The doctrine of collateral estoppel, or issue preclusion, [*2]operates in a criminal prosecution to bar relitigation ofissues necessarily resolved in defendant's favor at an earlier trial" (People vAcevedo, 69 NY2d 478, 484 [1987]). Thus, the doctrine applies in a situation suchas this, where at a prior trial there was a mixed verdict in which the jury acquitted adefendant of certain charges, but was unable to reach a verdict on the remaining charges(see e.g. People v Marmorato, 138 AD2d 410, 411 [1988], lv denied 71NY2d 970 [1988]). "Application of the collateral estoppel doctrine requires that the courtdetermine what the first judgment decided and how that determination bears on the laterjudgment . . . The rule is easily stated but frequently difficult to implementbecause the meaning of a general verdict is not always clear and mixed verdicts may, attimes, appear inherently ambiguous. Nevertheless, the court must assume the juryreached a rational result . . . , and a defendant claiming the benefit ofestoppel carries the burden of identifying the particular issue on which he [or she] seeksto foreclose evidence and then establishing that the fact finder in the first trial, by itsverdict, necessarily resolved that issue in his [or her] favor" (Goodman, 69 NY2dat 40; see e.g. People vJohnson, 14 AD3d 460, 461-462 [2005]). "Defendant's burden to show that thejury's verdict in the prior trial necessarily decided a particular factual issue raisedin the second prosecution is a heavy one indeed, and as a practical matter severelycircumscribes the availability of collateral estoppel in criminal prosecutions. . . '[I]t will normally be impossible to ascertain the exact import ofa verdict of acquittal in a criminal trial' " (Acevedo, 69 NY2d at 487; seePeople v Cole, 306 AD2d 558, 561 [2003], lv denied 100 NY2d 515 [2003];cf. People v Rossi, 222 AD2d 717, 717-718 [1995], lv denied 88 NY2d884 [1996]).Here, we conclude that the court properly denied defendant's motion to preclude theevidence regarding the two prior incidents. Inasmuch as the endangering the welfare of achild count of which she was convicted in the prior trial was based in part on the twoprior incidents that were the bases for the two assault counts of which she was acquitted,it is possible that the jury in the prior trial concluded that defendant was involved inthose incidents but that her actions did not evince a depraved indifference to human life,a necessary element of the assault counts. Consequently, we conclude that defendantfailed to meet her heavy burden of "establishing that the fact finder in the first trial, by itsverdict, necessarily resolved that issue in [her] favor" (Goodman, 69 NY2d at40).
Defendant's contention that the evidence is legally insufficient to support herconviction is not preserved for our review because her motion for a trial order ofdismissal "was not specifically directed at the same alleged shortcoming in the evidenceraised on appeal" (People vBrown, 96 AD3d 1561, 1562 [2012], lv denied 19 NY3d 1024 [2012][internal quotation marks omitted]; see People v Myers, 100 AD3d 1567, 1567 [2012]). In anyevent, that contention is without merit inasmuch as the evidence, viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]),establishes that defendant failed to obtain medical treatment for her infant daughter aftershe stopped breathing (seePeople v Lewis, 83 AD3d 1206, 1207 [2011], lv denied 17 NY3d 797[2011]; see generally People vMatos, 19 NY3d 470, 475-477 [2012]; People v Mayo, 4 AD3d 827, 827-828 [2004]). Thus, theevidence is legally sufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Additionally, viewing the evidence in light ofthe elements of the crime of endangering the welfare of a child as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, although a prospective juror initiallymade statements indicating that she might have "a state of mind that [was] likely topreclude [her] from rendering an impartial verdict based upon the evidence adduced atthe trial" (CPL 270.20 [1] [b]), "she ultimately stated unequivocally that she could followthe law and be fair and impartial" (People v Gladding, 60 AD3d 1401, 1402 [2009], lvdenied 12 NY3d 925 [2009]; see generally People v Chambers, 97 NY2d417, 419 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]). Thus, the courtdid err in denying defendant's challenge for cause to that prospective juror (cf. Peoplev Johnson, 94 NY2d [*3]600, 614-615 [2000]).
We have considered defendant's remaining contentions and conclude that nonerequires reversal or modification of the adjudication. Present—Smith, J.P.,Peradotto, Carni, Valentino and Martoche, JJ.