| People v Johnson |
| 2015 NY Slip Op 01107 [125 AD3d 1419] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Randy Johnson, Appellant. (Appeal No.1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered April 25, 2013. The judgment convicted defendant, upon his plea of guilty, ofreckless assault of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him,upon his plea of guilty, of reckless assault of a child (Penal Law § 120.02)in connection with a medical diagnosis determining that the child victim had sustainedserious physical injury as a result of shaken baby syndrome. Contrary to defendant'scontention, the record establishes that his waiver of the right to appeal was madeknowingly, intelligently and voluntarily (see People v Lopez, 6 NY3d 248, 256 [2006]). CountyCourt explained that defendant was waiving "almost all issues as to sentence andpunishment" including the length of the sentence, and the written waiver of the right toappeal set forth both the specific rights that defendant was waiving and those that werenot encompassed by the waiver. The court ascertained that defendant had reviewed thewritten waiver with his attorney, that he understood it, and that he had no questions forhis attorney or the court before signing it (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Bridenbaker, 112AD3d 1379, 1379 [2013]; cf. People v Bradshaw, 18 NY3d 257, 262 [2011]). Wetherefore conclude that defendant's valid waiver of the right to appeal encompasses hiscontention that the sentence is unduly harsh and severe (see Lopez, 6 NY3d at256; People v Connolly,114 AD3d 1231, 1231-1232 [2014], lv denied 23 NY3d 961 [2014]). In anyevent, that contention is without merit.
Based upon defendant's explanation during his plea colloquy of his actions, i.e., thathe had quickly grabbed the victim from the basinet on one occasion and had played withhim by "tossing" him in a spinning motion, the court conducted a presentence hearing toobtain information regarding shaken baby syndrome. The People presented the testimonyof the victim's treating physician, who is board certified in emergency pediatric care andpediatric child abuse. She explained that the injuries required more force to cause anacceleration and deceleration of the victim's head than would have occurred by theactions defendant described. She denied on cross-examination that certain medicalconditions that the victim had were a contributing factor to his injuries. Sheacknowledged, however, that one of those medical conditions, i.e., macrocephali, was asource of controversy in the medical community with respect to shaken baby syndromebut she explained that there was no medical evidence to support the theory thatmacrocephali contributed to a symptom of shaken baby syndrome, i.e., subduralhematomas. In any event, the treating physician explained that the victim lacked spinalfluid between the skull and the brain, which is the condition that some physicians believecauses tension on the veins between the skull and the brain, thereby causing the veins torupture, resulting in subdural hematomas. She also denied that the victim's retinalhemorrhages were related to premature retinopathy because that condition had healedbefore the victim sustained [*2]the retinalhemorrhages.
Following the hearing, the court denied defense counsel's request for an adjournmentof sufficient duration to permit him to consult with an expert to explore the possibilitywhether the treating physician's testimony could be contradicted, noting that defensecounsel had effectively cross-examined the treating physician. Contrary to defendant'scontention, we conclude that the court did not abuse or improvidently exercise itsdiscretion in denying the requested adjournment of sentencing (see People v Walker, 115AD3d 1357, 1357 [2014], lv denied 23 NY3d 1069 [2014]).
We reject defendant's further contention that he was denied effective assistance ofcounsel based upon defense counsel's failure to consult with, or provide the testimony of,an expert to rebut the testimony of the victim's treating physician with respect to shakenbaby syndrome. Defendant has failed to meet his burden of establishing that "such experttestimony was available, that it would have assisted the [court] in its determination orthat he was prejudiced by its absence" (People v Woolson, 122 AD3d 1353, 1354 [2014] [internalquotation marks omitted]; seePeople v West, 118 AD3d 1450, 1451 [2014], lv denied 24 NY3d 1048[2014]). Moreover, the record establishes that defense counsel consulted with medicalprofessionals and effectively cross-examined the treating physician. Viewing "theevidence, the law, and circumstances of [this] case, . . . in totality and as ofthe time of the representation" (People v Baldi, 54 NY2d 137, 147 [1981]), weconclude that defendant received meaningful representation (cf. People v Oliveras, 21 NY3d339, 348 [2013]).
In appeal No. 2, defendant contends that the court erred in ordering restitution in theamount of $7,378 to be paid to the Genesee County Department of Social Services (DSS)for the cost of providing foster care for the victim. Inasmuch as that item of restitutionaffects the legality of the sentence, the contention is not encompassed in the waiver of theright to appeal (see People vBoatman, 110 AD3d 1463, 1463-1464 [2013], lv denied 22 NY3d 1039[2013]; see generally People v Seaberg, 74 NY2d 1, 9 [1989]). We agree withdefendant that the court erred in determining that DSS was the victim's "guardian"(see Executive Law § 621 [6]), and therefore qualified to obtainrestitution for the cost of providing foster care as a "victim" pursuant to Penal Law§ 60.27. We therefore modify the order accordingly.
It is well established that restitution may be required for expenses that "were notvoluntarily incurred, but stem from legal obligations that are directly and causally relatedto the crime" (People v Cruz, 81 NY2d 996, 998 [1993]; see People v McCarthy, 83AD3d 1533, 1535 [2011], lv denied 17 NY3d 819 [2011]; People vMcDaniel, 219 AD2d 861, 861 [1995]). Here, however, the foster care expenses arethe result of the placement of the victim in the care and custody of DSS pursuant to aproceeding in Family Court (see Family Ct Act § 1055 [1]), andthus DSS is performing its statutory duty pursuant to Social Services Law§ 398 (2) (b). We note that the legislature has specifically provided thatcertain governmental agencies and entities are entitled to restitution when performingtheir statutory duties (see Penal Law § 60.27 [9], [10], [13]).Section 60.27 (9), for example, was enacted to permit restitution to police agencies forunrecovered funds used in undercover drug purchases following the decision inPeople v Rowe (152 AD2d 907, 909 [1989], affd 75 NY2d 948, 949 [1990]).In Rowe, we determined that, absent legislative intent to include a city policedepartment as a "victim," such funds could not be recovered by means of a court order ofrestitution. Similarly, here, in the absence of legislative intent that DSS is a "victim"pursuant to Penal Law § 60.27, we decline to impose an obligation ondefendant to pay restitution for the expenditure of public funds for providing foster carefor the victim. Present—Scudder, P.J., Smith, Carni, Lindley and Sconiers, JJ.