| People v Spears |
| 2017 NY Slip Op 07148 [154 AD3d 783] |
| October 11, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lacey Spears, Appellant. |
Riebling, Proto & Sachs, LLP, White Plains, NY (David R. Sachs and Stephen J.Riebling, Jr., of counsel), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary,J.), rendered April 8, 2015, convicting her of murder in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
Following the death of the defendant's five-year-old son (hereinafter the child), the defendantwas indicted by a grand jury on one count of murder in the second degree (depraved indifferencemurder of a child), and one count of manslaughter in the first degree.
At trial, the People's evidence demonstrated that when the child was an infant, he had surgerywhich included the placement of a gastrointestinal tube (hereinafter a G-tube) in his stomach sothat liquid nutrition could be administered. When the child started nursery school, the defendanttook him to a gastroenterologist who questioned whether the child still needed the G-tube, but thedefendant never had it removed. She reported that she continued to use it to provide the childwith liquid nutrition overnight, although three of the defendant's friends and the child's teachereach testified that the child had a good appetite and ate normally when in their care.
During the course of the child's life, the defendant took him to a variety of doctors andhospitals, and repeatedly reported that the child had certain medical conditions that had beenruled out by other physicians. The defendant also reported on numerous occasions to the child'steachers and doctors that the child was suffering from serious illnesses, which illnesses werenever confirmed.
On January 17, 2014, the child's teacher stopped by the defendant's apartment. She noticed afeeding bag attached to a pole in the middle of the room and the child on the couch seeminglyuncomfortable. Shortly after the teacher left, the defendant called her friend and reported that thechild was having a seizure. The friend, upon arriving at the defendant's apartment, observed thechild hooked up to a feeding bag. The defendant and her friend brought the child to NyackHospital where the defendant reported that the child had experienced three episodes that the[*2]defendant believed to be seizures.
The child was admitted to the hospital so that a video electroencephalogram (hereinafterEEG) could be performed to rule out a seizure disorder. A video camera was placed facing thechild's hospital bed to record any physical symptoms of seizures that he may exhibit, and itrecorded approximately 42 hours of footage. The footage from January 19, 2014, showed thedefendant and the child entering the bathroom in the hospital room, and the defendant walkingtowards the bathroom area carrying a white cup and what appeared to be an attachment thatconnected to the child's G-tube. The child exited the bathroom and became ill shortly after, dryheaving, complaining of a severe headache, and suffering from diarrhea. After the childrecovered from this episode, the footage shows the defendant and the child again entering thebathroom, and the defendant carrying a white cup and what appeared to be the attachment to hisG-tube. Again, the child displayed the same symptoms, and then began to exhibit what the staffat Nyack Hospital originally thought were signs of a seizure. However, the EEG did not showseizure activity, but, rather, a significant slowing in the brain waves, which suggested a severebrain dysfunction.
A blood test conducted shortly thereafter showed abnormally high sodium and chloridelevels. The child, who could no longer breathe on his own, was airlifted to a different hospitalwhere he was diagnosed with hypernatremia (an elevated sodium level) of unknown etiology.Approximately two days later, the child suffered cerebral edema and herniation of the brain stem,and it was determined that he was brain dead.
Before and throughout the child's last hospital admission, the defendant sent many texts tofriends reporting on the child's actual and purported health problems, indicating her worry forhim, and asking the recipients to pray for the child. The information in the texts was oftenunconfirmed or contradicted by the evidence from the physicians who had treated him. Thedefendant also posted photos of the child on Facebook, including photos taken after the childsuffered cerebral edema and she was told that he would not likely recover.
After the child's death, a treating physician called Child Protective Services because hebelieved, upon consulting with multiple specialists in a variety of disciplines, that the child'shypernatremia was caused by introduction of salt into his G-tube. Following an autopsy, themedical examiner reached a similar conclusion. The People also presented the testimony of amedical expert who agreed with the conclusion of the treating physician and the medicalexaminer, and opined that if the child's treating doctors had known that he suffered fromhypernatremia caused by exogenous sodium, the treatment would have been different. Furthertestimony was offered from a physician who had treated the child for unexplained hypernatremiawhen he was 2
Upon the foregoing evidence, the defendant was convicted of depraved indifference murderof a child (see Penal Law § 125.25 [4]), and sentence was imposed.
The defendant's contention that the evidence was legally insufficient to prove beyond areasonable doubt that she caused her son's death is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, contrary to the defendant's contention, viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490 [1987]). Upon reviewing the record here, we are satisfied that theverdict of guilt was not against the weight of the [*3]evidence (see People v Romero, 7 NY3d 633[2006]).
More specifically, we conclude that, contrary to the defendant's contention, the evidence,when properly weighed, demonstrated beyond a reasonable doubt that the defendant acted undercircumstances evincing a depraved indifference to human life. Depraved indifference to humanlife is a culpable mental state that is "best understood as an utter disregard for the value of humanlife" (People v Feingold, 7 NY3d288, 296 [2006] [internal quotation marks omitted]; see People v Barboni, 21 NY3d 393, 400 [2013]). It "comprisesboth depravity and indifference" (Peoplev McMillon, 31 AD3d 136, 139 [2006]), such that "a person who is depravedlyindifferent is not just willing to take a grossly unreasonable risk to human life—thatperson does not care how the risk turns out" (People v Lewie, 17 NY3d 348, 359 [2011]; see People vBarboni, 21 NY3d at 400).
"A defendant may be convicted of depraved indifference murder when but a single person isendangered in only a few rare circumstances," including when a defendant "engages in torture ora brutal, prolonged and ultimately fatal course of conduct against a particularly vulnerablevictim" (People v Suarez, 6 NY3d202, 212 [2005]; see Penal Law § 125.25 [4]). Here, the evidencedemonstrated that the defendant subjected the child to such a "brutal, prolonged and ultimatelyfatal course of conduct" (People v Suarez, 6 NY3d at 212; see People v Barboni,21 NY3d at 402-404). In particular, the evidence showed that the defendant's course of conductagainst the child in January 2014 included repeatedly sickening him and subjecting him to pain,to the point where he became unable to breathe on his own and, eventually, became brain dead(see People v Barboni, 21 NY3d at 401-402). The People established that the defendantintroduced salt into the child's G-tube on more than one occasion, despite being aware of itseffect on the child's condition, and never informed the doctors of the cause of his symptoms asthey struggled to treat him (see id. at 402). This and other evidence of the defendant'sconduct, including the manner in which she presented herself and the situation to others,demonstrated her fixation on garnering attention and sympathy for herself, and her utterindifference to the life of the child. Thus, although depraved indifference to the life of another is"rare" and "surely even rarer when the other person is one's own child" (People v Lewie,17 NY3d at 359), under the unique circumstances of this case, the mens rea of depravedindifference to human life was proven beyond a reasonable doubt (see People v Thomas, 22 NY3d629, 635-636 [2014]; People vBarboni, 21 NY3d 393 [2013]; People v Snyder, 91 AD3d 1206 [2012]).
Contrary to the defendant's contentions, the Supreme Court properly denied her motion tosuppress the evidence taken from her cell phone seized pursuant to search warrants dated January27, 2014, and April 7, 2014. Although the subject warrant applications did not contain atraditional jurat or form notice (see Penal Law § 210.45; People vSullivan, 56 NY2d 378, 383-384 [1982]), they were labeled as affidavits, each identified theaffiant by name declaring that he was "being duly sworn deposes and says," and the magistrate'ssignature appeared below the affiant's signatures signifying that the magistrate witnessed theaffiant's signatures. Under these circumstances, we agree with the Supreme Court that there wassubstantial compliance with CPL 690.35 (see People v Sullivan, 56 NY2d at 383;People v Zimmer, 112 AD2d 500, 501 [1985]).
We agree with the defendant that the Supreme Court erred in admitting into evidence anarticle entitled "Hypernatremia" from the website Wikipedia. The People failed to properlyauthenticate the document as a fair and accurate depiction of the content of that article on thedate that the defendant's cell phone allegedly accessed the website (see generally People v Barcero, 116AD3d 1060, 1060 [2014]; People vJohnson, 51 Misc 3d 450, 461 [County Ct, Sullivan County 2015]). However, the errorwas harmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the defendant would have been acquitted if not for the error in admitting thearticle (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Phem, 73 AD3d 1088,1089 [2010]; People v Rivera, 192 AD2d 561, 562 [1993]).
The sentence imposed was not excessive (see CPL 470.15; People v Delgado,80 NY2d 780, 783 [1992]; People vKordish, 140 AD3d 981 [2016]).
The defendant's remaining contentions are without merit. Leventhal, J.P., Sgroi, LaSalle andBarros, JJ., concur. [Prior Case History: 2015 NY Slip Op 32678(U).]