| People v Chase |
| 2018 NY Slip Op 00935 [158 AD3d 1233] |
| February 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Rose M.Chase, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Gary Muldoon of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedJanuary 15, 2014. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, tampering with physical evidence, and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is modified on the law by reversingthat part convicting defendant of endangering the welfare of a child and dismissing count three ofthe indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), tampering with physicalevidence (§ 215.40 [2]), and endangering the welfare of a child(§ 260.10 [1]). Although we agree with defendant that the People improperlydelayed turning over certain Rosario material, we conclude that she failed to demonstratesubstantial prejudice as a result thereof, and she is therefore not entitled to a new hearing orreversal of the judgment of conviction (see People v Boykins, 134 AD3d 1542, 1543 [4th Dept 2015],lv denied 27 NY3d 1066 [2016]; People v Carota, 93 AD3d 1072, 1077 [3d Dept 2012]; People v Lluveres, 15 AD3d 848,849 [4th Dept 2005], lv denied 5 NY3d 807 [2005]; People v Collins, 283 AD2d437, 438 [2d Dept 2001], lv dismissed 96 NY2d 934 [2001], lv denied 97 NY2d703 [2002]).
We reject defendant's contention that County Court erred in limiting the cross-examination ofa police officer. The court ruled that defense counsel could inquire whether the officer was incommunication with the District Attorney during his interview of defendant but that he could notquestion the officer regarding the specific contents of the communication. " 'The trialcourt is granted broad discretion in making evidentiary rulings in connection with the preclusionor admission of testimony[,] and such rulings should not be disturbed absent an abuse ofdiscretion' " (People vAcevedo, 136 AD3d 1386, 1387 [4th Dept 2016], lv denied 27 NY3d 1127[2016]). Here, the court's ruling did not constitute an abuse of discretion.
Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), we conclude that it is legally sufficient to establish defendant's intentto kill inasmuch as such intent " 'may be inferred from defendant's conduct as well as thecircumstances surrounding the crime' " (People v Badger, 90 AD3d 1531, 1532 [4th Dept 2011], lvdenied 18 NY3d 991 [2012]). In addition to certain statements of defendant from which thejury could infer that she intended to kill the victim, the People presented evidence that, on theday of the victim's death, defendant and the victim had an argument (see People v Lucas, 94 AD3d1441, 1441 [4th Dept 2012], lv denied 19 NY3d 964 [2012]). Moreover, there is nodispute that defendant is in fact solely responsible for the victim's death, hid the body for severalweeks at her home, and then transported the body to her mother's house where she cremated thebody and disposed of the remains in a trash can (see People v Geddes, 49 AD3d 1255, 1256 [4th Dept 2008], lvdenied 10 NY3d 863 [2008]). Viewing the evidence in light of the elements of murder in thesecond degree as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict withrespect to that charge is not against the weight of the evidence (see People v Bleakley, 69NY2d 490, 495 [1987]).
We agree with defendant, however, that her conviction of endangering the welfare of a childis not based on legally sufficient evidence, and we therefore modify the judgment accordingly.The charge arose from defendant allegedly having her four-year-old child accompany her whenshe transported the victim's body to her mother's house. Viewing the evidence in support of thatcharge in the light most favorable to the People (see Contes, 60 NY2d at 621), weconclude that the People failed to establish beyond a reasonable doubt that the child's riding inthe car with the victim's body was likely to result in harm to the physical, mental, or moralwelfare of the child (see Penal Law § 260.10 [1]; People vHitchcock, 98 NY2d 586, 590-591 [2002]). Specifically, the People presented no evidencethat the child was aware that the victim's body was in the car or that the child was upset orbothered by any smells or sights in the car or later at his grandmother's house (see generally People v Kanciper, 100AD3d 778, 779 [2d Dept 2012]).
Although the Court of Appeals has held that "[a]ctual harm to the child need not result forcriminal liability" and that "it is sufficient that the defendant act in a manner which is likelyto result in harm to the child, knowing of the likelihood of such harm coming to thechild" (People v Johnson, 95 NY2d 368, 371 [2000] [internal quotation marks omitted]),"[t]he People . . . must establish that the harm was likely to occur, and not merelypossible" (Hitchcock, 98 NY2d at 591). Our dissenting colleagues conclude that "the juryhere could have reasonably concluded that there was a likelihood that the child could be harmedby his inevitable knowledge and understanding of the actual events in which defendantknowingly involved him." In our view, that conclusion is too tenuous, and the "common humanexperience and commonsense understanding of the nature of children" cannot overcome the factthat there is nothing in this record from which the jury could have concluded that defendant'sfour-year-old child was likely to be harmed (People v Simmons, 92 NY2d 829, 831[1998]). The actions of defendant in this case are beyond repugnant, but the dissent's reliance onthe child's "inevitable knowledge and understanding of the actual events" in concluding that harmis likely to occur is entirely speculative.
Finally, we reject defendant's contention that her sentence is unduly harsh and severe.
All concur except Whalen, P.J., and Winslow, J., who dissent and vote to affirm in thefollowing memorandum.
Whalen, P.J., and Winslow, J. (dissenting). We respectfully dissent inasmuch as we wouldaffirm the judgment in its entirety. Viewing the evidence as a whole "and the inferences whichmay be drawn in the light most favorable to the People" (People v Johnson, 95 NY2d368, 373 [2000]), we conclude that the evidence at trial is legally sufficient to support defendant'sconviction of endangering the welfare of a child (Penal Law § 260.10 [1]). Thejurors, "drawing upon their common human experience and commonsense understanding of thenature of children," could reasonably conclude that transporting a four-year-old child in a carwith the body of the severely decomposed, dismembered corpse of the man the child knew to behis father was "likely to have caused the child harm, and that defendant knew that her [actions]were likely to cause the child to suffer harm" (People v Simmons, 92 NY2d 829, 831[1998], citing People v Kennedy, 47 NY2d 196, 203 [1979], rearg dismissed 48NY2d 635, 656 [1979]). We cannot agree with the majority that this is a case where the child wascompletely unaware of the circumstances. Defendant, herself, admitted in a police interview thatthe car "stunk" at the time, prompting her to attempt to minimize the smell by driving with thewindows down and explaining to the child that "[M]ommy is trying to air out the car." Contraryto People v Kanciper (100 AD3d778, 779 [2d Dept 2012]), on which the majority relies, the jury here could have reasonablyconcluded that there was a likelihood that the child could be harmed by his inevitable knowledgeand understanding of the actual events in which defendant knowingly involved him (seeSimmons, 92 NY2d at 831; see generally Johnson, 95 NY2d at 372; People v Kalen, 68 AD3d 1666,1667 [4th Dept 2009], lv denied 14 NY3d 842 [2010]). Present—Whalen, P.J.,Centra, DeJoseph, NeMoyer and Winslow, JJ.