| People v Ash |
| 2018 NY Slip Op 04601 [162 AD3d 1318] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Connor L. Ash, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered April 7, 2016, upon a verdict convicting defendant of the crimes of assault in the seconddegree and endangering the welfare of a child.
In January 2015, defendant's son (hereinafter the victim), who was almost three months oldat the time, sustained a fracture of his right femur after defendant, who was 19 years old at thetime, forcefully picked him up by the leg as the victim was lying in a swing. In connection withthis incident, defendant was charged by indictment with assault in the second degree andendangering the welfare of a child. Following a jury trial, defendant was convicted as chargedand thereafter sentenced to an aggregate prison term of seven years, to be followed by three yearsof postrelease supervision. County Court also issued an eight-year order of protection in favor ofthe victim. Defendant appeals. We affirm.
Defendant's challenge with respect to the legal sufficiency of the evidence is not preservedfor our review in light of his failure to renew his motion to dismiss at the close of all proof (see People v Lane, 7 NY3d 888,889 [2006]; People v Spencer, 152AD3d 863, 863 [2017], lv denied 30 NY3d 983 [2017]; People v Pine, 126 AD3d 1112,1114 [2015], lv denied 27 NY3d 1004 [2016]). Defendant, however, also contends thatthe verdict was against the weight of the evidence and, therefore, we consider the evidenceadduced with respect to each [*2]element of the challengedcrimes (see People v Ruiz, 148AD3d 1212, 1215 n [2017], lv denied 30 NY3d 983 [2017]; People v Williams, 138 AD3d1233, 1234 [2016], lv denied 28 NY3d 939 [2016]). Where, as here, a differentoutcome would not have been unreasonable, we "weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions" (People v Danielson, 9NY3d 342, 348 [2007]; see Peoplev Mould, 143 AD3d 1186, 1186 [2016], lv denied 28 NY3d 1187 [2017]).
As relevant here, assault in the second degree requires that the People prove that defendant,being 18 years old or older, caused physical injury to a person less than seven years old with theintent to do so (see Penal Law § 120.05 [9]). With respect to theendangering the welfare of a child charge, the People must establish, as relevant here, thatdefendant knowingly acted in a manner likely to be injurious to the physical, mental or moralwelfare of a child less than 17 years old (see Penal Law § 260.10 [1]).
The trial testimony reveals that the victim lived in a three-bedroom apartment with hismother and defendant, who were not married to each other, and his maternal grandparents,among others. The mother testified that defendant watched the victim during the day while themother worked. On the morning in question, the mother fed him a bottle in their bedroom beforeshe left for work. The victim then went back to sleep, and the mother stated that she did notnotice any injuries or bruises on the victim's legs at that time. The mother woke up defendant sothat he could watch the victim, and she was driven to work by the victim's grandfather atapproximately 9:45 a.m.
The victim's grandmother testified that she woke up around 10:00 a.m. While in the kitchen,the grandmother heard the victim crying loudly and she saw defendant in the living room holdingthe victim. The grandmother took the victim from defendant and tried to calm him. Thegrandfather returned approximately 40 minutes after he left, and he testified that the grandmotherwas holding the victim, who was "putting up a good cry." The grandmother continued to soothethe victim, but, when she shifted or repositioned him, he started crying again. Both thegrandfather and the grandmother noticed that the victim's right leg was swollen. The grandfathertestified that the victim's leg was "a little bit of purplish" and that his cry was not his normalcry.
The victim was then taken to the hospital, and a physician who treated the victim testifiedthat the victim had a "transverse, dislocated, comminuted femur fracture" in his right leg. Thephysician also stated that the sustained injuries were consistent with a "traumatic blow" and notwith a fall from a bed or changing table. The emergency department physician who saw thevictim likewise testified that the victim was not capable of causing the sustained injuries on hisown and that she was concerned that the injuries resulted from nonaccidental trauma. Theemergency department physician also stated that when she examined the victim, his right leg wasswollen and "did not look right." A physician assistant who treated the victim testified that thevictim's X ray showed an "angulated fracture of the femur, approximately 40 degrees ofangulation." The physician assistant further stated that the mechanism of injury was "consistentwith force being applied to the posterior bottom of the thighbone in an upward fashion." Thephysician assistant added that the amount of applied force must have been "fairlysignificant."
A deputy sheriff questioned defendant about the victim's injuries. Defendant told the deputysheriff that, as he was warming a bottle, the victim was yelling and crying at him as he was lyingin a swing. Defendant became "very agitated" and was irritated that the victim would not stopcrying. According to the deputy sheriff, defendant stated that he then "grabbed the child [*3]pretty forcefully," at which point the victim cried harder. In hisvoluntary statement to the deputy sheriff, defendant confirmed that he grabbed the upper part ofthe victim's right leg with his left hand and "grabbed him forcefully with [his] left hand whilepicking him up." A sergeant testified that he interviewed defendant and was told by defendantthat the victim was yelling nonstop as he was warming a bottle. Defendant told the sergeant thathe would become unreasonably upset when babies cried. The sergeant stated that when he askeddefendant about the victim's injury, defendant responded that he may have squeezed the victim'sleg and that he had picked up the child "aggressively because he was upset that the [victim] wascrying."
The People also introduced into evidence thousands of pages showing messages sent bydefendant through Facebook to numerous people. Scattered among these pages wereconversations that defendant had with other women in which he would flirt with them, some ofwhich took place shortly after the time the victim was injured. In some messages, defendant alsoreferred to the victim as an "asshole" or a "demon," that "children make [him] so enraged" andthat no one would want to be in a relationship with him because he had a child.
Viewing the foregoing evidence in a neutral light, we are unpersuaded by defendant's claimthat the verdict was against the weight of the evidence (see People v Mitchell, 94 AD3d 1252, 1254-1255 [2012], lvdenied 19 NY3d 964 [2012]; Peoplev Ciccone, 90 AD3d 1141, 1144 [2011], lv denied 19 NY3d 863 [2012]; People v Ward, 42 AD3d 579, 581[2007], lv denied 9 NY3d 883 [2007]; People v Le Blanc, 199 AD2d 584, 585[1993], lv denied 82 NY2d 926 [1994]). In addition, given the severity of the victim'sinjuries and defendant's admission that he became agitated due to the victim's crying and he"aggressively" picked up the victim, the jury could infer from the surrounding circumstances thatdefendant possessed the requisite intent to cause physical injury to the victim (see People v Nash, 64 AD3d 878,881 [2009]; People v Zindle, 48AD3d 971, 973 [2008], lv denied 10 NY3d 846 [2008]). Although defendanttestified to a contrary version of events as to how the victim was injured, the jury was entitled toreject his testimony (see People vNewell, 148 AD3d 1216, 1221 [2017], lv denied 29 NY3d 1035 [2017]).
We are also unpersuaded by defendant's assertion that the admission of the Facebookmessages deprived him of fair trial. Such evidence was relevant on the issue of intent (seegenerally People v Miller, 39 NY2d 543, 549 [1976]), and its probative value outweighedany undue prejudice to defendant. Even though the People focused on excerpts of the Facebookmessages during trial, the jury was provided with all of the messages for deliberation.Furthermore, when defendant testified, he explained the context and meaning behind the negativemessages concerning the victim. Accordingly, we find that defendant was not deprived of a fairtrial based upon the admission of the Facebook messages.
Defendant argues that County Court erred in permitting his wife to testify about aconversation that she had with him because such testimony violated the spousal privilege. Wedisagree. Specifically, the People asked the wife what defendant told her about how the victimwas injured, to which the wife responded, "He said, if he did it, he didn't mean to." Contrary todefendant's assertion, such statement was not "prompted by the affection, confidence and loyaltyengendered by the marital relationship" (People v Fediuk, 66 NY2d 881, 883-884[1985]). As such, the spousal privilege did not apply.
Defendant failed to preserve his argument that the People were impermissibly allowed toquestion other women at trial about his overtures to them (see People v Long, 291 AD2d720, 721 [2002], lv denied 98 NY2d 677 [2002]). Nor did defendant preserve hisargument that [*4]comments made during the People'ssummation concerning such overtures or the negative remarks about the victim made throughFacebook prejudiced him given the absence of an objection thereto (see People v Johnson, 151 AD3d1462, 1465 [2017], lv denied 30 NY3d 1106 [2018]). In any event, the challengedremarks were fair comment on the evidence (see People v Jackson, 160 AD3d 1125, 1129 [2018]). Defendantalso did not raise an objection when the People asked the victim's mother whether defendant,while in jail, inquired about the victim and, thus, defendant's claim on this point is notpreserved.
Defendant's contention that County Court erred in failing to give a circumstantial evidencecharge is likewise unpreserved for our review given that he did not request such charge or objectto the court's final instructions (seePeople v Wallace, 8 AD3d 753, 756 [2004], lv denied 3 NY3d 682 [2004];People v Richards, 290 AD2d 584, 586 [2002], lv denied 98 NY2d 654 [2002];see generally People v McKenzie, 67 NY2d 695, 697 [1986]). In any event, defendant'sclaim is without merit. A circumstantial evidence charge is appropriate when the People's caserests entirely on circumstantial evidence (see People v Hardy, 26 NY3d 245, 249 [2015]). In contrast, where,as here, the proof against defendant consisted both of direct evidence—defendant'sadmission that he quickly and aggressively picked the victim up by the leg and the medical proofconcerning the victim's injury—and circumstantial evidence, a circumstantial evidencecharge is not required (see People v Rumble, 45 NY2d 879, 880 [1978]; People vBryce, 174 AD2d 945, 946 [1991], lv denied 79 NY2d 854 [1992]; cf. People v Varmette, 70 AD3d1167, 1171 [2010], lv denied 14 NY3d 845 [2010]; People v Lewis, 300AD2d 827, 829 [2002], lv denied 99 NY2d 630 [2003]; People v Struss, 228AD2d 711, 714 [1996], lv denied 89 NY2d 867 [1996]; compare People v Burke,96 AD2d 971, 971-972 [1983], affd 62 NY2d 860, 861 [1984]).
To that end, defendant was not deprived of meaningful representation due to his counsel'sfailure to request a circumstantial evidence charge (see People v McRobbie, 97 AD3d 970, 972 [2012], lvdenied 20 NY3d 934 [2012]; People v Setless, 289 AD2d 708, 709 [2001], lvdenied 98 NY2d 640 [2002]). Nor can we say that defense counsel's failure to preserve alegal sufficiency argument amounted to ineffective assistance, especially in view of ourdetermination that the verdict was not against the weight of the evidence (see People v Williams, 156 AD3d1224, 1231 [2017], lv denied 31 NY3d 1018 [2018]). As to defendant's claim thathis counsel should have retained a social media expert or psychologist to explain the meaningbehind his Facebook posts, such claim is more appropriately suited for a CPL article 440 motioninasmuch as the record does not disclose counsel's decision-making process (see People v Perry, 154 AD3d1168, 1171 [2017]). We have considered defendant's remaining grievances regarding hiscounsel's representation of him and, viewing the record in its entirety, we are satisfied thatdefendant received meaningful representation (see People v Pettway, 58 AD3d 944, 947[2009], lv denied 12 NY3d 820 [2009]; People v Adams, 51 AD3d 1136, 1136 [2008], lv denied 11NY3d 784 [2008]; People v Holden, 188 AD2d 757, 760-761 [1992], lv denied81 NY2d 887 [1993]).
Finally, although the imposed sentence and the duration of the order of protection were themaximum permitted under the relevant statutes (see Penal Law § 70.02 [3][c]; CPL 530.12 [5]), we disagree with defendant that they were harsh and excessive. Taking intoaccount the victim's tender age, the gravity of his injuries and defendant's failure to takeresponsibility for his actions, we discern no abuse of discretion or extraordinary circumstanceswarranting a reduction in the interest of justice (see People v Jennings, 20 AD3d 777, 778 [2005], lv denied5 NY3d 829 [2005]). Furthermore, any alleged errors in the presentence investigation report didnot affect the [*5]sentence (see People v Wright, 160 AD3d 1110, 1113 [2018]). We also notethat County Court, during sentencing, was made aware of certain errors, and they were corrected.Defendant's remaining arguments have been considered and lack merit.
McCarthy, J.P., Devine, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.