| People v Schumaker |
| 2016 NY Slip Op 01068 [136 AD3d 1369] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDylan Schumaker, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Dylan Schumaker, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered January 10, 2014. The judgment convicted defendant, upon a jury verdict,of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence imposed to anindeterminate term of incarceration of 18 years to life, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]), arisingfrom the death of his girlfriend's 23-month-old son. Defendant contends, inter alia, thatthe evidence is not legally sufficient to support the conviction and that the verdict isagainst the weight of the evidence. Although he concedes that his actions caused thevictim's death, defendant challenges the sufficiency and weight of the evidence withrespect to whether he intentionally caused the victim's death. We reject thosechallenges.
It is well settled that "[t]he standard for reviewing the legal sufficiency of evidence ina criminal case is whether 'after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt' " (People v Contes, 60 NY2d 620,621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979], reh denied444 US 890 [1979]). Consequently, we must "determine whether there is any validline of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial" (People vBleakley, 69 NY2d 490, 495 [1987]).
Here, the testimony of the Medical Examiner established that the victim sustainedruptured blood vessels in his left ear and near his right eye, hemorrhages in his retina andperioptic nerve, and subdural and subarachnoid hemorrhaging. The Medical Examinertestified that the victim also had numerous contusions and abrasions on multiple areas ofhis torso, buttocks, scalp, face and neck. The Medical Examiner opined that the cause ofthe victim's death was "diffuse axonal injury," which resulted from shearing forceswithin the child's brain caused by his head whipping violently back and forth, and thatsuch a result is consistent with the blows that defendant admitted inflicting upon thechild. The Medical Examiner testified that the child's injuries were not consistent with aslip and fall as defendant testified occurred, but instead were the result of "multipleimpacts." Other evidence, including text messages that defendant sent and his trialtestimony, established that the child was initially injured before 5:00 p.m., and thatdefendant inflicted further injuries upon him over a period of several hours during theevening. Defendant admitted hitting the victim several times, including backhandedsmacks to his face, and slamming his head on the ground while changing a diaper, all ofwhich culminated [*2]in defendant placing the victim ona bed with a pillow over him and repeatedly punching him in the head. The MedicalExaminer testified that the "diffuse axonal injury" caused the victim's death, and that thevictim had "no prolonged survival [after he sustained that injury, but rather he] died soonthereafter, shortly thereafter."
The evidence also established that defendant frequently stopped attacking the victimwhile he sent an ongoing series of text messages. At approximately 5:00 p.m., he told thevictim's mother that the victim had fallen, but for the next several hours he texted withher on that and other topics, flirted with a different young woman, and attempted to sellsynthetic marihuana to a third person. Thus, the evidence is sufficient to establish thatdefendant spent the evening intermittently attacking the 23-month-old child whileengaging in commercial and social activities, and then placed the victim on a bed andpunched him repeatedly in the head through a pillow. "A jury is entitled to infer that adefendant intended the natural and probable consequences of his acts" (People v Bueno, 18 NY3d160, 169 [2011]; see People v Hayes, 163 AD2d 165, 166 [1990],affd 78 NY2d 876 [1991]; People v Watson, 269 AD2d 755, 756 [2000],lv denied 95 NY2d 806 [2000]). We conclude that the evidence is legallysufficient to establish that defendant intended to cause the death of the victim (seegenerally Bleakley, 69 NY2d at 495).
Furthermore, it is also well settled that, "in conducting its weight of the evidencereview, a court must consider the elements of the crime, for even if the prosecution'switnesses were credible their testimony must prove the elements of the crime beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 349 [2007]). Here, viewing the evidence in light of theelements of the crime of murder as charged to the jury (see id.), we furtherconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). We note that, "[a]lthough defendant testified that he didnot intend to kill [the] victim, the [jury] was free to reject that self-serving testimony" (People v Simcoe, 75 AD3d1107, 1109 [2010], lv denied 15 NY3d 924 [2010]).
Defendant further contends that Supreme Court erred in denying his Batsonobjection to the prosecutor's use of peremptory challenges to exclude twoAfrican-American prospective jurors. Defendant failed to preserve for our review thatpart of his contention concerning the court's procedure for determining hisBatson objection (seePeople v Collins, 63 AD3d 1609, 1610 [2009], lv denied 13 NY3d 795[2009]; People v Parker, 304 AD2d 146, 156 [2003], lv denied 100 NY2d585 [2003]). We decline to exercise our power to review that part of defendant'scontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
We reject those parts of defendant's Batson contention that are preserved forour review. We conclude that the court properly determined that the prosecutor'sexplanations for exercising peremptory challenges with respect to the two prospectivejurors were race-neutral and not pretextual when it rejected defendant's Batsonobjections concerning those two prospective jurors (see generally People vSmocum, 99 NY2d 418, 422 [2003]). The prosecutor challenged one of theprospective jurors based on her memberships in religious and human rights organizationsthat the prosecutor felt made her more sympathetic to defendant (see People v Page, 105 AD3d1380, 1381 [2013], lv denied 23 NY3d 1023 [2014]; People v Wilson, 43 AD3d1409, 1411 [2007], lv denied 9 NY3d 994 [2007]), and she challenged theother on the ground that the prospective juror's lack of life experiences anddecision-making responsibilities made her a less-qualified candidate for jury service(see People v Hinds, 270 AD2d 891, 892 [2000], lv denied 95 NY2d 964[2000]). Finally, the prosecutor established that she struck other prospective jurors whowere not members of a suspect class for those same reasons, and the court thereforeproperly concluded that the prosecutor's explanations were not pretextual (see Peoplev Simmons, 79 NY2d 1013, 1015 [1992]; cf. People v Mallory, 121 AD3d 1566, 1568 [2014]; see generally People vLawrence, 23 AD3d 1039, 1039 [2005], lv denied 6 NY3d 835[2006]).
We reject defendant's further contention that he was denied effective assistance ofcounsel. Defendant's contention that he was deprived of effective assistance of counselby his attorney's failure to pursue a defense of extreme emotional disturbance is withoutmerit. That defense requires that a defendant establish that he "suffered from a mentalinfirmity not rising to the level of insanity at the time of the homicide, typicallymanifested by a loss of self-control" (People v Roche, 98 NY2d 70, 75 [2002];see People v Wall, 48 AD3d1107, 1107 [2008], lv denied 11 NY3d 742 [2008]). Here, "[w]e concludethat proof of the objective element [of the defense] is lacking . . . , inasmuchas defendant's behavior immediately before and after the killing was inconsistent with[*3]the loss of control associated with the affirmativedefense" (People vMohamud, 115 AD3d 1227, 1228 [2014], lv denied 23 NY3d 965[2014] [internal quotation marks omitted]; see People v Jarvis, 60 AD3d 1478, 1479 [2009], lvdenied 12 NY3d 916 [2009]). It is well settled that "[t]here can be no denial ofeffective assistance of trial counsel arising from counsel's failure to 'make a motion orargument that has little or no chance of success' " (People v Caban, 5 NY3d143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], reargdenied 3 NY3d 702 [2004]). Furthermore, in order "[t]o prevail on a claim ofineffective assistance of counsel, it is incumbent on defendant to demonstrate the absenceof strategic or other legitimate explanations" for defense counsel's allegedly deficientconduct (People v Rivera, 71 NY2d 705, 709 [1988]; see People vBenevento, 91 NY2d 708, 712 [1998]), and defendant failed to make such a showinghere.
We likewise reject defendant's contention that he was denied effective assistance ofcounsel based on his attorney's failure to seek a Dunaway hearing" 'where, as here, such [a request] was potentially futile' " (People v Smith, 128 AD3d1434, 1434-1435 [2015], lv denied 26 NY3d 1011 [2015]). Similarly, thereis no evidence in the record that the Sheriff's detectives who questioned defendant usedany ploy that might constitute a "highly coercive deception[ ]" that would justifysuppression of his statements (People v Thomas, 22 NY3d 629, 642 [2014]; see People v Moore, 132 AD3d496, 496-497 [2015]; seegenerally People v Knapp, 124 AD3d 36, 41-42 [2014]), and thus defendantwas not denied effective assistance of counsel by his trial attorney's failure to move tosuppress his statements on that ground. Defendant's contention in his pro se supplementalbrief that trial counsel was ineffective in failing to challenge prosecutorial misconductoccurring in the grand jury is baseless, inasmuch as there is no evidence that trial counselhad access to the grand jury minutes. We have considered defendant's remainingcontentions in his main and pro se supplemental briefs with respect to the allegedineffective assistance of counsel and, viewing the evidence, the law and thecircumstances of this case, in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve for our review his contention that the investigators whoquestioned him should have advised him of his Miranda rights a second time,before he began to write out his statement (see People v Rodriguez, 70 AD3d 729, 730 [2010], lvdenied 14 NY3d 892 [2010]; People v Kemp, 266 AD2d 887, 887 [1999],lv denied 94 NY2d 921 [2000]). In any event, that contention lacks merit. Where" 'a person in police custody has been issued Miranda warnings andvoluntarily and intelligently waives those rights, it is not necessary to repeat the warningsprior to subsequent questioning within a reasonable time thereafter, [where, as here,] thecustody [was] continuous' " (People v Johnson, 20 AD3d 939, 939 [2005], lv denied5 NY3d 853 [2005]; seePeople v Peterkin, 89 AD3d 1455, 1455-1456 [2011], lv denied 18NY3d 885 [2012]).
Defendant waived his present contention that the court erred, following aVentimiglia hearing, in allowing the prosecutor to present evidence of a prior badact, i.e., an altercation he had with the victim's mother the day before this incident,inasmuch as he consented to the admission of that evidence (see People vMcCain, 307 AD2d 764, 765 [2003], lv denied 100 NY2d 622 [2003];see generally People v Carr, 267 AD2d 1062, 1063 [1999], lv denied 95NY2d 833 [2000]).
We agree with defendant, however, that the sentence imposed is unduly harsh andsevere in light of defendant's youth and lack of parental guidance, his lack of priorcriminal convictions, and his mental health issues. Thus, we modify the judgment byreducing the sentence, as a matter of discretion in the interest of justice (see CPL470.15 [6] [b]), to an indeterminate term of incarceration of 18 years to life.Present—Smith, J.P., Carni, Lindley and DeJoseph, JJ.