| People v Courteau |
| 2017 NY Slip Op 07061 [154 AD3d 1317] |
| October 6, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Jessica N.Courteau, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.), renderedApril 20, 2015. The judgment convicted defendant, upon a jury verdict, of endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict ofendangering the welfare of a child (Penal Law § 260.10 [1]). The conviction arisesout of defendant's conduct in connection with a traumatic brain injury sustained by an18-month-old child when the child was in defendant's care. The jury acquitted defendant of themore serious charges of assault in the first degree (§ 120.10 [3]), reckless assault ofa child (§ 120.02 [1]) and reckless endangerment in the first degree(§ 120.25).
Defendant's challenge to the legal sufficiency of the evidence supporting the childendangerment charge is not preserved for our review because she made only a general motion fora trial order of dismissal with respect to that charge (see People v Gray, 86 NY2d 10, 19[1995]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence. In reviewing the weight of the evidence we must determine in the first instancewhether, "based on all the credible evidence[,] a different finding would not have beenunreasonable" (People v Bleakley, 69 NY2d 490, 495 [1987]). "Where, as here, anacquittal would not have been unreasonable, we 'must weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions' " (People vDean, 70 AD3d 1193, 1194 [2010], quoting Danielson, 9 NY3d at 348). Inperforming our weight of the evidence review, moreover, we may consider the jury's acquittal onthe other counts in the indictment (see People v Rayam, 94 NY2d 557, 563 n [2000]; People v O'Neil, 66 AD3d 1131,1134 n 2 [2009]; People v Ross, 62AD3d 619, 619 [2009], lv denied 12 NY3d 928 [2009]). Based on the weight of thecredible evidence, we conclude that the jury was justified in finding defendant not guilty of thosecounts charging her with recklessly engaging in conduct that caused the child's injury or created agrave risk of death to the child, while at the same time finding her guilty of the count chargingher with "knowingly act[ing] in a manner likely to be injurious to the physical . . .welfare of [the] child" (Penal Law § 260.10 [1]). Specifically, the jury was justifiedin finding that the evidence established that the seriousness of the child's condition was apparentto defendant, and that her failure to take appropriate action amounted to knowingly acting in amanner likely to be injurious to the child (see People v Keegan, 133 AD3d 1313, 1316 [2015], lv denied27 NY3d 1152 [2016]; People vBrandi E., 105 AD3d 1341, 1343 [2013], lv denied 22 NY3d 1154 [2014]; People v Lewis, 83 AD3d 1206,1207 [2011], lv denied 17 NY3d 797 [2011]).
Defendant failed to preserve for our review her contention that the prosecutor, duringsummation, improperly urged the jury to speculate concerning defendant's mental state at thetime that the child was in her care (seePeople v Smith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). Inany event, even assuming that the prosecutor's comment was improper, we conclude that it wasnot so egregious that it deprived defendant of a fair trial (see People v Griffin, 125 AD3d 1509, 1511 [2015]).Present—Whalen, P.J., Smith, Carni, DeJoseph and Curran, JJ.