| People v Hang Bin Li |
| 2017 NY Slip Op 07454 [154 AD3d 960] |
| October 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Hang Bin Li, Appellant. |
Paul Skip Laisure, New York, NY (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter,J.), rendered March 4, 2013, convicting him of manslaughter in the second degree andendangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On October 23, 2007, the defendant's then 2
After providing a number of oral and written statements to the police, the defendanteventually admitted to the police that he "carelessly bump[ed] [Annie's] head on the night stand."The defendant was arrested and charged, inter alia, with manslaughter in the second degree andendangering the welfare of a child. He was later convicted, upon a jury verdict, of thosecharges.
The defendant's generalized motion to dismiss made at the conclusion of the People's casefailed to preserve his challenge to the legal sufficiency of the evidence (see CPL 470.05[2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Caldavado, 78 AD3d962, 963 [2010]; People vSulayao, 58 AD3d 769, 770 [2009]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
[*2] The evidence presented by thePeople established that the defendant had one-on-one access to Annie during relevant timeperiods preceding her hospitalization. Further, the record is replete with evidence, includingstrong medical expert evidence, that Annie's death was a homicide caused by violent shaking andforceful impacts to her head. This proof, coupled with the defendant's devastating admission thathe "carelessly bump[ed] her head on the night stand," was both legally and factually sufficient tosustain the jury's verdict.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Roman and Maltese, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment, as a matter of discretion in the interest ofjustice, and dismiss the indictment, with the following memorandum, in which BrathwaiteNelson, J., concurs: According to the evidence presented by the People, on the afternoon ofOctober 22, 2007, the defendant called his friend Li Dong Yong and asked Yong if he couldborrow some money so that he could take his two-month-old daughter Annie to the hospital.Yong went to the defendant's apartment, arriving at 8:00 p.m. The defendant's wife was takingcare of Annie at the time. Yong testified that Annie looked a little pale, and that her eyes wereclosed. She was also making a "ki ki" sound. The defendant's wife told Yong that Annie's feverhad already gone down, and that they wanted to wait until the next day to take her to the hospital.Yong slept over on a spare bed.
After midnight, Yong was awakened by the defendant screaming. Annie had turned blue, andYong called the 911 emergency number. While awaiting an ambulance, the defendant attemptedmouth-to-mouth resuscitation on Annie. The ambulance arrived and took Annie to the hospital,where she was diagnosed with abusive head trauma and shaken baby syndrome. She died severaldays later.
Neither the defendant nor his wife testified at trial. The People introduced into evidencewritten statements that the defendant made to the police. In one of these statements, thedefendant recounted the activities of himself, his wife, and Annie during the 24 hours precedingAnnie's hospitalization. In another, the defendant stated that after Annie turned blue, hecarelessly bumped her head on a night stand.
Contrary to the majority's determination, we conclude that there was legally insufficientevidence to support the defendant's convictions of manslaughter in the second degree andendangering the welfare of a child.
In People v Wong (81 NY2d 600 [1993]), there was evidence at trial that the twodefendants were continuously present in an apartment with an infant and that one of thedefendants had shaken the infant violently enough to produce fatal injuries (see id. at604). However, because neither defendant gave a complete account of what had occurred, thePeople were unable to prove which defendant had administered the fatal shaking (see id.).The Court of Appeals concluded that the defendants' convictions of manslaughter in the seconddegree and endangering the welfare of a child were unsupported by legally sufficient evidence(see id.). In doing so, the Court found that there was no sound factual basis on which tohold the person who did not actually shake the infant criminally responsible for the infant's death(see id. at 610). This was because there was no proof from which the jury could infer thatthis "passive" defendant was aware that the infant had been violently shaken, since it was likelythat at least one of the defendants would have left the room in which the infant was located atsome point during the relevant period (id. at 609).
Here, as in Wong, the evidence showed that there were two adults present in thesubject apartment during the relevant time period, i.e., the defendant and his wife. And there wasno evidence establishing which of these adults administered the fatal shaking. While thedefendant [*3]stated to the police that he carelessly bumpedAnnie's head on a night stand, the People's expert witnesses testified that a bump of a head on anight stand could not have been the cause of Annie's injuries. And while it is possible that thedefendant told the police that he bumped Annie's head in order to cover up a crime, there was noevidence establishing that this crime was committed by the defendant as opposed to his wife. Asin Wong, the defendant's "clumsy and transparent exculpatory effort[ ]" in this regardreflected, at most, his "guilty knowledge that a horrible crime had occurred in [his] apartment onthe preceding night" (id.).
Accordingly, I respectfully dissent.