| People v Stahli |
| 2018 NY Slip Op 01359 [159 AD3d 1055] |
| March 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth Stahli, Appellant. |
Paul J. Connolly, Delmar, for appellant.
D. Holley Carnright, District Attorney, Kingston (Marlene O. Tuczinski, New YorkProsecutors Training Institute, Albany, of counsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered June 4, 2015, upon a verdict convicting defendant of the crime of murder in the seconddegree.
Defendant resided with Katlin Wolfert and her two sons, the two-year-old victim and hisyounger brother, in the summer of 2014. Beginning in mid-July 2014, defendant cared for thechildren while Wolfert was working. On the afternoon of August 5, 2014, the victim's aunt wentto wake him up and found him unresponsive in bed. Emergency responders observed that rigormortis was already setting in on the heavily bruised victim, and it was later determined that hesuccumbed to nonaccidental blunt force trauma and attendant blood loss. An investigationpointed to defendant as the perpetrator of these injuries, and he was indicted on one count ofmurder in the second degree (depraved indifference murder of a child). Following a jury trial,defendant was found guilty as charged. County Court sentenced defendant to 25 years to life inprison, and he now appeals.
We affirm. Defendant argues that the verdict was not supported by legally sufficient evidenceand was against the weight of the evidence. A legal sufficiency challenge requires us to "view theevidence in the light most favorable to the People and evaluate whether 'there is any valid line ofreasoning and permissible inferences which could lead a rational person to the conclusionreached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proofand burden requirements for every element of the crime charged' " (People vRobinson, [*2]156 AD3d 1123, 1124 [2017], quotingPeople v Bleakley, 69 NY2d 490, 495 [1987]; see People v Kancharla, 23 NY3d 294, 302 [2014]). A legallysufficient verdict may, however, be against the weight of the evidence (see People v Danielson, 9 NY3d342, 349 [2007]). The latter review requires us to assess whether acquittal was a reasonablepossibility and, if so, to weigh "the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" in decidingwhether the verdict was justified (People v Bleakley, 69 NY2d at 495 [internal quotationmarks and citation omitted]; see People v Kancharla, 23 NY3d at 303).
Defendant first questions whether the trial proof established that he recklessly engaged inconduct that created a grave risk of serious physical injury or death to the victim and resulted inthe victim's death (see Penal Law § 125.25 [4]). His challenge to the legalsufficiency of this proof is unpreserved due to his failure to attack it in his trial motion ofdismissal; nevertheless, we consider "whether the elements of the challenged crime were provedbeyond a reasonable doubt" as part of our weight of the evidence review (People v Rosario, 157 AD3d 988,989 [2018]; see People v Odofin,153 AD3d 972, 974 [2017]). In that regard, Wolfert testified, and the victim's treating nursepractitioner confirmed, that the victim was healthy prior to being left in defendant's clutches. Bythe time of the victim's death, he was covered by approximately 80 visible bruises and abrasionsand had significant internal injuries. The internal injuries included brain, spine and eye injuriesthat a medical examiner testified were classic indications of a child striking his or her head whilebeing shaken. The victim also fractured a rib, an injury often seen in a child subjected tononaccidental squeezing. The medical evidence reflected that the primary cause of the victim'sdeath, however, was massive internal bleeding caused by a single incident three to five days priorto his death wherein extreme, sudden compression of his abdomen lacerated his liver andintestines and ripped apart his pancreas.
The victim was visibly injured in the week before he died, as Wolfert testified to seeing himwith bruises, a black eye, a bloody nose and a fat lip. She also testified to returning from work onJuly 29, 2014 to find him bruised, lethargic, vomiting and passing blood. Wolfert furtherobserved that the victim was not "acting right" and, on the day before his death, asked coworkersif they thought she should seek medical attention for him. Another witness testified that she sawthe victim's head "lolling to the side" and his eyes "rolling into the back of his head" before hedied, observations so disturbing that she unsuccessfully urged defendant to take the victim to thehospital. Defendant passed some of these injuries off to Wolfert as having occurred under hersupervision and suggested that most resulted from the victim's clumsiness, but other witnessestied them to defendant's abuse. For example, a neighbor testified that, about five days before thevictim died, he watched defendant vigorously shake the screaming victim in a parked vehicle andslam the victim against a car seat with such force that he bounced up and struck his head on thevehicle ceiling. Another witness related a conversation on August 2 or 3, 2014 in whichdefendant recounted how the victim had bitten him on the finger, prompting defendant to throwthe victim on a bed so forcefully that the bed broke at some point. Defendant admitted toinvestigators that this had happened, adding that he placed his right knee onto the victim'sstomach while pulling his finger free. Of note, the medical examiner testified that a knee beingforcefully jammed into the victim's abdomen could account for the internal injuries that led to hisdeath.
This extensive proof indicated that defendant inflicted severe and eventually fatal injuriesupon the victim in the week prior to his death, and defendant himself acknowledged toinvestigators that no one else was in a position to cause those injuries. Therefore, deferring to thejury's assessment that this evidence was credible, its finding that defendant "recklessly engagedin conduct that created a grave risk of serious physical injury or death to the victim and, in fact,[*3]resulted in his death" was not against the weight of theevidence (People v Warrington, 146AD3d 1233, 1235 [2017], lv denied 29 NY3d 1038 [2017]; see Penal Law§ 15.05 [3]; People vBarboni, 21 NY3d 393, 405 [2013]; People v Varmette, 70 AD3d 1167, 1171 [2010], lv denied14 NY3d 845 [2010]).
Defendant assertion that the trial proof failed to establish his "depraved indifference tohuman life" is unavailing (Penal Law § 125.25 [4]). Depraved indifference is,simply put, "an utter disregard for the value of human life" (People v Suarez, 6 NY3d 202, 214 [2005]). It exists "where thefacts 'reflect wanton cruelty, brutality or callousness directed against a particularly vulnerablevictim, combined with utter indifference to the life or safety of the helpless target' " (People v Nelligan, 135 AD3d1075, 1078 [2016], lv denied 27 NY3d 1072 [2016], quoting People vSuarez, 6 NY3d at 213; see People v Barboni, 21 NY3d at 400). The proof in thiscase showed that "[d]efendant inflicted brutal injuries upon a helpless child over a prolongedperiod," attempted to conceal his role in causing them and rejected a plea to obtain medicalattention for a victim in obvious decline (People v Nelligan, 135 AD3d at 1078).Therefore, legally sufficient evidence existed to support the conclusion "that defendant evinced awanton and uncaring state of mind" (People v Barboni, 21 NY3d at 402) and, in ourview, the jury's decision to make that finding was not against the weight of the evidence (seePeople v Warrington, 146 AD3d at 1237; People v Waite, 145 AD3d 1098, 1101 [2016], lv denied 29NY3d 953 [2017]; People v Varmette, 70 AD3d at 1171).
Defendant next argues that County Court erred in denying his request to charge criminallynegligent homicide (see Penal Law § 125.10) as a lesser included offense ofdepraved indifference murder of a child. "A crime cannot be a lesser included offense of a greaterone unless, when assessing the elements of the two crimes, it is 'theoretically impossible tocommit the greater crime without at the same time committing the lesser' " (People v Cruz, 152 AD3d 822,824 [2017], lv denied 30 NY3d 1018 [2017], quoting People v Green, 56 NY2d427, 430 [1982]; see CPL 1.20 [37]; People v Rivera, 23 NY3d 112, 120-121 [2014]). Criminallynegligent homicide demands that a person act "with criminal negligence" and, in doing so,"causes the death of another person" (Penal Law § 125.10). Inasmuch as criminalnegligence involves a person failing "to perceive [the] substantial and unjustifiable risk" of theresult set forth by the statute (Penal Law § 15.05 [4]), a person does not commitcriminally negligent homicide unless he or she fails to perceive a substantial and unjustifiablerisk of death (see People v Ricardo B., 73 NY2d 228, 235 [1989]; People vMontanez, 41 NY2d 53, 56 [1976]). In contrast, Penal Law § 125.25 (4)demands that an adult person, "[u]nder circumstances evincing a depraved indifference to humanlife, . . . recklessly engage[ ] in conduct which creates a grave risk of seriousphysical injury or death to another person less than [11] years old" and that ends in the otherperson's death (emphasis added).
The definition of serious physical injury encompasses injuries that do not create a substantialrisk of death or cause death, such as those that cause "serious and protracted disfigurement,protracted impairment of health or protracted loss or impairment of the function of any bodilyorgan" (Penal Law § 10.00 [10]). As we have previously held, it is thereforetheoretically possible to commit depraved indifference murder of a child by "engag[ing] inconduct that creates and disregards a grave risk of serious physical injury, causing death, without. . . engaging in conduct that creates . . . a substantial risk of death,causing death" (People v [*4]Heslop, 48 AD3d 190, 195 [2007] [citation omitted], lvdenied 10 NY3d 935 [2008]).[FN*] Defendant urges us to overrule thisprecedent—which is in accord with the other Appellate Divisions that have addressed theissue (see People v Mora, 57 AD3d571, 572-573 [2d Dept 2008], lv denied 12 NY3d 785 [2009]; People vRobinson, 278 AD2d 798, 798 [4th Dept 2000], lv denied 96 NY2d 762[2001])—but we recently declined a similar invitation and perceive no compelling reasonto accept this one (see People v Warrington, 146 AD3d at 1239). Thus, criminallynegligent homicide is not a lesser included offense of depraved indifference murder of a child,and County Court correctly declined to charge it as such.
Defendant further contends that he was deprived of a fair trial when the prosecutor expressedhis personal upset over the allegations and vouched for the credibility of certain evidence atseveral points during his summation. To the extent that this argument was preserved for ourreview when defendant alerted County Court to the comments in his post-summation objection(see CPL 470.05 [2]; People v Balls, 69 NY2d 641, 642 [1986]), it is withoutmerit. The prosecutor apologized for his excesses when the comments were called to hisattention, and he suggested a curative instruction. Defendant crafted the curative instruction and,while County Court delivered it in a slightly modified form, it still served to dissipate anyprejudice by "clearly advising the jury that the comments were improper and must be completelydisregarded" (People v Ashwal, 39 NY2d 105, 111 [1976]; see People v VanVorst, 118 AD3d1035, 1037 [2014]). Accordingly, while the "comments would have been better left unsaid,the circumstances of this case do not reveal that they represented a flagrant and pervasive patternof misconduct that deprived [defendant] of a fair trial" (People v Nadal, 131 AD3d 729, 731 [2015], lv denied 26NY3d 1041 [2015]; see People vStory, 81 AD3d 1168, 1168-1169 [2011]; People v Guay, 72 AD3d 1201, 1203-1204 [2010], affd 18NY3d 16 [2011]).
Finally, in light of the vicious nature of the crime, the sentence imposed by County Courtwas neither harsh nor excessive (see People v Warrington, 146 AD3d at 1239; People v Manos, 73 AD3d 1333,1339 [2010], lv denied 15 NY3d 807 [2010]).
Egan Jr., J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To show that "circumstancesevincing a depraved indifference to human life" existed (Penal Law § 125.25 [4]),the People needed to show "that defendant did not care whether his victim lived or died"(People v Barboni, 21 NY3d at 400). Although a defendant may act in a manner thatrecklessly creates a grave risk of serious physical injury to a young child without also creating asubstantial risk of death, the requisite indifference may still be shown if, for example, death laterresults from a decision to ignore physical deterioration caused by "infection, shock or some othercomplication flowing from the [initial] abuse" (People v Heslop, 48 AD3d at 196).