| People v Waite |
| 2013 NY Slip Op 05479 [108 AD3d 985] |
| July 25, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Appellant, v Gary L. Waite, Respondent. |
—[*1] Marc Zuckerman, Bolton Landing, for respondent.
Lahtinen, J.P. Appeal from an order of the County Court of Warren County (Hall Jr.,J.), entered October 18, 2012, which partially granted defendant's motion to dismiss theindictment.
Defendant's 15-month-old son died as a result of head injuries sustained while indefendant's custody. A grand jury indicted defendant on charges of murder in the seconddegree (depraved indifference murder of a child), manslaughter in the second degree andendangering the welfare of a child. Defendant moved to dismiss the indictment. CountyCourt denied the motion as to the counts of manslaughter and endangering the welfare ofa child, but granted it with respect to the murder count. The People appeal.
In reviewing a motion to dismiss an indictment, courts view the evidence in a lightmost favorable to the People and determine only whether the evidence presented to thegrand jury was legally sufficient (see People v Jennings, 69 NY2d 103, 114[1986]; see also People v Galatro, 84 NY2d 160, 163-164 [1994]). "In thecontext of grand jury proceedings, 'legal sufficiency means prima facie proof of thecrimes charged, not proof beyond a reasonable doubt' " (People v Mills, 1 NY3d269, 274 [2003], quoting People v Bello, 92 NY2d 523, 526 [1998]; seePeople v Jennings, 69 NY2d at 115). "The reviewing court's inquiry is limited towhether the facts, if proven, and the inferences that logically flow from those factssupply proof of every element of the charged crimes" (People v Bello, 92 NY2dat 526 [internal quotation marks and citation omitted]; see People v Swamp, 84NY2d 725, 730 [1995]). "[I]f the prosecutor has established a [*2]prima facie case, the evidence is legally sufficient eventhough its quality or weight may be so dubious as to preclude indictment or convictionpursuant to other requirements" (People v Jennings, 69 NY2d at 115 [internalquotation marks and citations omitted]).
Defendant was charged under a statutory provision (see Penal Law §125.25 [4]) that was added in 1990 (see L 1990, ch 477, § 4) to addressrecognized inherent difficulties in proving an appropriate level of criminality for severechild abuse causing death that was recklessly perpetrated by an adult upon a vulnerableinfant (see e.g. Assembly Mem in Support, Bill Jacket, L 1990, ch 477; Letterfrom Assembly Member James R. Tallon, Jr. in Support, Bill Jacket, L 1990, ch 477).Although since such time the element of depraved indifference has been judiciallyrefined (see e.g. People vFeingold, 7 NY3d 288, 291-294 [2006]), nonetheless numerous recent caseshave upheld convictions after jury trials of depraved indifference murder of an infant byan adult (see e.g. People v Barboni, 21 NY3d 393 [2013]; People vMcLain, 80 AD3d 992 [2011], lv denied 16 NY3d 897 [2011]; People v James, 70 AD3d1052 [2010], lv denied 14 NY3d 888 [2010]; People v Williams, 54 AD3d599 [2008], lv denied 11 NY3d 901 [2008]; People v Griffin, 48 AD3d1233 [2008], lv denied 10 NY3d 840 [2008]; People v Ford, 43 AD3d571 [2007], lv denied 9 NY3d 1033 [2008]; see generally Morris,Black & Muldoon, Criminal Law in New York § 5:9 [4th ed]). It is nowestablished that depraved indifference constitutes "a culpable mental state which must beproven by the People" (People vMatos, 19 NY3d 470, 477 [2012]; see People v Feingold, 7 NY3d at296), and it is "best understood as an utter disregard for the value of human life—awillingness to act not because one intends harm, but because one simply doesn't carewhether grievous harm results or not" (People v Suarez, 6 NY3d 202, 214 [2005]; accordPeople v Feingold, 7 NY3d at 296).
Here, defendant had the 15-month-old infant in his exclusive care from about 11:00a.m. to 6:00 p.m. His statement to police initially claimed that between 2:00 p.m. and3:00 p.m. the child fell off the couch onto the floor cutting his lip. He then acknowledgedthat he left out some information in his statement, including that 20 to 30 minutes afterthe first fall off the couch he "got frustrated" because the infant "wouldn't stop buggingout" so he "tossed him" to one end of the couch where the infant bounced off the couch,striking his head on the hardwood floor. Defendant further added to his statement that, atabout 5:40 p.m., the infant tripped while walking, hitting his face on the metal leg of achair.
Defendant's evolving story of a fall, toss and then trip as the source of injuries wasseriously challenged by the testimony of the initial treating physician. The doctor opinedthat the infant's extensive head injuries were not consistent—individually orcollectively—with events described by defendant. The doctor stated that the childsustained injuries causing a "massively swollen brain." He indicated that the infant'sinjuries were more akin to being in a car accident at 60 miles per hour with no seat beltand the head hitting the windshield or falling from a 10-story building. The infant wasquickly airlifted to Albany Medical Center, but doctors there were unable to save himdespite removing parts of his skull and even portions of his brain as it continuedswelling. In addition, the individual who lived below defendant's upstairs apartmentrecalled hearing a noise that was "really loud, loud enough to shake walls," which hecharacterized as "sound[ing] like a full grown man falling on the floor."
Although proving beyond a reasonable doubt that defendant's conduct satisfied themens rea requirements for depraved indifference will undoubtedly present the Peoplewith a significant challenge at trial, legal sufficiency in the context of a grand juryproceeding does not require such a high standard of proof. Indeed, a jury should beallowed to "determine whether the record supports an inference that the requisite mensrea was present" by considering a defendant's [*3]actionsand the surrounding circumstances (People v Baker, 20 NY3d 354, 360 [2013]; see People v Weaver, 16 NY3d123, 128 [2011]; People v Todaro, 26 NY2d 325, 328-329 [1970]; see also People v Johnson, 106AD3d 1272,1278 [2013]). Exactly what transpired and when, as well as defendant'sstate of mind and the real reasons for defendant's phone calls to others regarding thechild during the afternoon, may never be fully known, but, at a minimum, implicatecredibility questions that should be resolved by the trier of fact at trial. A logicalinference from the proof, particularly the treating doctor's testimony, could be that theinjuries that defendant inflicted upon the infant were immediately and obviously veryserious and, despite such fact, defendant delayed summoning appropriate care as heengaged in communication aimed at minimizing both his conduct and the gravity of theinfant's injuries. Stated another way, a defendant who inflicts severe injuries upon a childand then attempts to weave a story over several hours to save himself while the childsuffers is hardly less callously indifferent to the child's life than one who waits andeventually dispassionately reports the child's condition (cf. People v Barboni,21 NY3d 393, 402-403 [2013]).The evidence before the grand jury, viewed most favorably to the People, established aprima facie case for depraved indifference murder.
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, by reversing so much thereof as partially granted defendant's motion and dismissedcount 1 of the indictment; motion denied in its entirety and said count reinstated; and, asso modified, affirmed.