| People v Keegan |
| 2015 NY Slip Op 08543 [133 AD3d 1313] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKelly J. Keegan, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Cindy F. Intschert, District Attorney, Watertown (Wendy Lehmann, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Appeal from a judgment of the Jefferson County Court (Donald E. Todd, A.J.),rendered June 21, 2012. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree, assault in the second degree (two counts), assault in the thirddegree, reckless assault of a child, and endangering the welfare of a child (twocounts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of one count each of assault in the first degree (Penal Law § 120.10[3]), assault in the third degree (§ 120.00 [2]), and reckless assault of achild (§ 120.02 [1]), and two counts each of assault in the second degree(§ 120.05 [8], [9]) and endangering the welfare of a child(§ 260.10 [1]). The convictions arose out of two separate incidents, one inFebruary 2011, in which the infant victim's ears were injured, and a second in March2011, in which the child, then not yet a year old, suffered a traumatic brain injury andother debilitating permanent injuries.
Contrary to defendant's contention, County Court did not abuse its discretion indenying his motion to sever those counts of the indictment relating to the February 2011incident from those counts relating to the March 2011 incident. The counts are joinablebecause they "are defined by the same or similar statutory provisions and consequentlyare the same or similar in law" (CPL 200.20 [2] [c]), and defendant failed to show goodcause for a discretionary severance under CPL 200.20 (3) (see People v Gaston, 100AD3d 1463, 1464-1465 [2012]; see generally People v Mahboubian, 74NY2d 174, 183 [1989]).
Defendant further contends that his statements to the police were involuntary becausehis "emotional state caused his will to be overborne," and that the court therefore erred inrefusing to suppress those statements. Inasmuch as defendant failed to seek suppressionof the statements on that ground, he failed to preserve that contention for our review (see generally People v Ricks,49 AD3d 1265, 1266 [2008], lv denied 10 NY3d 869 [2008],reconsideration denied 11 NY3d 740 [2008]). In any event, we conclude that"[t]he evidence at the suppression hearing does not establish that defendant's will wasoverborne or that defendant's capacity for self-determination was critically impaired"(People v Worth, 233 AD2d 939, 940-941 [1996]), and thus defendant'scontention lacks merit. By failing to object to the testimony of a police officerconcerning his prior dealings with defendant, defendant likewise failed to preserve forour review his contention that the officer's testimony was improper (see CPL470.05 [2]). In any event, the court sua sponte issued a curative instruction, and thecourt's instruction was "sufficient to alleviate any prejudice to defendant" (People vHogan, 292 AD2d 834, 834 [2002], lv denied 98 NY2d 676 [2002]).
We reject defendant's contention that certain photographs of the infant victim wereimproperly admitted in evidence. In order to prove that defendant committed the offenseof [*2]assault in the first degree, the People were requiredto establish that defendant acted recklessly and with a depraved indifference to humanlife, and thereby caused serious physical injury to the infant victim (see PenalLaw § 120.10 [3]). Because "the extent of the injuries was a major elementin the prosecution's proof that defendant acted with a depraved indifference to humanlife, the introduction of the photographs cannot be considered to have been solelymotivated by a desire to inflame the jury" (People v Arca, 72 AD2d 205, 207[1980]; see generally People v Pobliner, 32 NY2d 356, 369 [1973], reargdenied 33 NY2d 657 [1973], cert denied 416 US 905 [1974]).
Defendant also contends that he was denied his constitutional right to present adefense because a police officer testified inaccurately at trial about a statement made bydefendant, and the People failed to notify defendant, pursuant to CPL 710.30, of theirintent to offer that inaccurate testimony at trial. We reject that contention. At the hearingon defendant's posttrial motion, the police officer testified that he had inaccuratelytestified at trial about defendant's statement based on an unfounded assumption aboutthat statement. Inasmuch as the officer's inaccurate testimony was inconsistent withdefendant's statement to the police, which was thereafter admitted in evidence at trial, thecourt properly struck that testimony and instructed the jury to disregard it. In addition, theprosecutor stipulated before the jury that the testimony in question was inaccurate. Underthe circumstances, we conclude that the police officer's inaccurate testimony did not denydefendant his constitutional right to present a defense, and the court therefore properlydenied defendant's mistrial motion and posttrial motion to set aside the verdict on thatground.
Defendant failed to object to the jury charge as given, and therefore failed topreserve for our review his contention that the jury charge was improper (seegenerally People v Robinson, 88 NY2d 1001, 1001-1002 [1996]). In any event,contrary to defendant's contention, the court properly charged the jury that defendantcould intend to cause physical injury for purposes of the assault in the second degreecount while at the same time "recklessly creat[ing] 'a grave risk that a different, moreserious result . . . would ensue from his actions' " for purposes ofthe assault in the first degree count (People v Belcher, 289 AD2d 1039, 1039[2001], lv denied 97 NY2d 751 [2002], quoting People v Trappier, 87NY2d 55, 59 [1995]). The court also properly denied defendant's request for an "entirecase" circumstantial evidence charge because the evidence adduced at trial was notwholly circumstantial (see e.g. People v Bryce, 174 AD2d 945, 946 [1991], lvdenied 79 NY2d 854 [1992]).
Defendant further contends that the evidence is legally insufficient to support theconviction of assault in the first degree because the People failed to establish that heacted with depraved indifference. We reject that contention. Despite the infliction ofserious injuries upon the infant victim, including a traumatic brain injury, defendantfailed to seek medical treatment until the infant victim became fully unresponsive. Underthese circumstances, the jury "could have rationally found beyond a reasonable doubtthat defendant consciously disregarded the substantial and unjustifiable risk that death orserious injury would result" from his actions (People v Barboni, 21 NY3d 393, 405 [2013]). Whiledefendant also contends that the People failed to prove with respect to the March 2011incident that he alone could have caused the injuries suffered by the infant victim, weconclude that the evidence is legally sufficient to establish that the child was indefendant's sole custody at the time the injuries were inflicted (see People v Walter, 128 AD3d1512, 1512-1513 [2015], lv denied 25 NY3d 1173 [2015]). Defendant alsocontends that the evidence is legally insufficient to support his conviction of assault inthe third degree and endangering the welfare of a child with respect to the February 2011incident, in which the infant victim's ears were injured. We again reject that contention.Based upon the evidence adduced at trial, there is a valid line of reasoning andpermissible inferences to lead a rational person to conclude that defendant, knowing thathis actions were likely to injure the infant victim, recklessly caused the infant victimphysical injury (see Penal Law §§ 10.00 [9]; 120.00 [2];260.10 [1]; People v VanGuilder, 29 AD3d 1226, 1228 [2006]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's further contention that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
"[D]efendant's claim of ineffective assistance of counsel, to the extent that it ispremised on his attorney's failure to retain and call an expert witness, involves matterdehors the record and, thus, is not properly before us on this direct appeal from thejudgment" (People vStaropoli, 49 AD3d 568, 568-569 [2008], lv denied 10 NY3d 871[2008]). Despite defendant's further claims of ineffective assistance, we conclude that therecord as a whole establishes that defense counsel [*3]provided meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Defendant further contends that the court did not properly inform counsel of a jurynote prior to responding to it (see People v O'Rama, 78 NY2d 270, 276-278[1991]). Because "the court read the note verbatim before the jury, defense counsel, anddefendant[,] [and] [d]efense counsel raised no objection," defendant failed to preservehis contention for our review (People v Arnold, 107 AD3d 1526, 1527 [2013], lvdenied 22 NY3d 953 [2013]; see People v Alcide, 21 NY3d 687, 693-694 [2013]; People v Stoutenger, 121AD3d 1496, 1498-1499 [2014], lv denied 25 NY3d 1077 [2015]). Wedecline to exercise our power to review defendant's contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]; People v Bonner, 79 AD3d1790, 1790-1791 [2010], lv denied 17 NY3d 792 [2011]).
We have reviewed defendant's remaining contentions and conclude that nonerequires reversal or modification of the judgment. Present—Scudder, P.J., Smith,Carni, Lindley and Valentino, JJ.