| People v Hall |
| 2020 NY Slip Op 02411 [182 AD3d 1023] |
| April 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Nikey J. Hall, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Caitlin M. Connelly of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.),rendered October 7, 2015. The judgment convicted defendant upon a jury verdict ofassault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the first degree (Penal Law § 120.10 [3]), arising froman incident in which his 14-month-old daughter (victim) sustained a neurologicallydevastating traumatic brain injury while in his exclusive care. We affirm.
Contrary to defendant's contention, Supreme Court did not abuse its discretion inruling that, although the People could not introduce on their direct case evidence ofcertain post-crime behavior by defendant, the prosecutor would be permitted tocross-examine defendant about that behavior if he chose to testify (see generallyPeople v Allen, 198 AD2d 789, 789-790 [4th Dept 1993], affd 84 NY2d 982[1994]; People v Sandoval, 34 NY2d 371, 376 [1974]).
Defendant also contends that the court erred in admitting in evidence recordedtelephone conversations between defendant and the victim's mother and aunt. Initially,defendant failed to preserve for our review his claims that the recordings should havebeen redacted and that they contained inadmissible hearsay (see CPL 470.05 [2];People v McKenzie, 161AD3d 703, 704 [1st Dept 2018], lv denied 32 NY3d 1113 [2018]; People v Wiley, 67 AD3d1370, 1371-1372 [4th Dept 2009], lv denied 14 NY3d 845 [2010]), and wedecline to exercise our power to review those claims as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further claim,even assuming, arguendo, that the recordings constitute Molineux evidence(see generally People v Ventimiglia, 52 NY2d 350, 359 [1981]; People vMolineux, 168 NY 264, 293 [1901]), we conclude that such evidence was properlyadmitted inasmuch as it was relevant to defendant's state of mind and motive, as well asto provide necessary background information, and the court did not abuse its discretionin determining that the probative value thereof outweighed the potential for prejudice (see People v Hansson, 162AD3d 1234, 1239 [3d Dept 2018], lv denied 32 NY3d 1004 [2018]; People v Agee, 57 AD3d1486, 1487 [4th Dept 2008], lv denied 12 NY3d 813 [2009]). To the extentthat defendant contends that the court erred in failing to give a limiting instruction withrespect to the recordings, he failed to preserve that contention for our review (seeCPL 470.05 [2]; see People v Williams, 241 AD2d 911, 912 [4th Dept 1997],lv denied 91 NY2d 837 [1997]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Contrary to defendant's further contention, we conclude that the "evidence of priorinjuries to the [victim] presented by the People was admissible to negate the defense ofaccident or mistake advanced by defendant," particularly in light of the fact that" 'the crime[s] charged . . . occurred in the privacy of the home andthe facts are not easily unraveled' " (People v Riley, 23 AD3d 1077, 1077 [4th Dept 2005],lv denied 6 NY3d 817 [2006], quoting People v Henson, 33 NY2d 63, 72[1973]; see People v Holloway, 185 AD2d 646, 647 [4th Dept 1992], lvdenied 80 NY2d 1027 [1992]). We conclude that "the probative value of th[at]evidence outweighed its potential for prejudice" and, in addition, we note that the courtminimized its prejudicial effect by providing limiting instructions that the jury was toconsider the evidence only with respect to defendant's claim that the victim's injury arosefrom an accident (Riley, 23 AD3d at 1077; see Hansson, 162 AD3d at1239). Furthermore, by failing to object to the testimony of a witness regarding herobservation of certain prior injuries on the ground advanced on appeal, defendant failedto preserve for our review his additional challenge to that testimony (see CPL470.05 [2]), and we decline to exercise our power to review that challenge as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
We reject defendant's contention that the court committed reversible error byadmitting in evidence a photograph depicting a length of pipe that was discovered indefendant's residence. The court admitted the photograph for the "very limited purpose"of showing the object that defendant was questioned about by police investigators in arecorded interview that had already been played for the jury and cautioned that thephotograph was not being offered to suggest that the pipe was an instrument used toinflict the injury on the victim. Contrary to defendant's contention, we conclude on thisrecord that the court's cautionary instruction, which the jury is presumed to havefollowed (see People v Davis, 58 NY2d 1102, 1104 [1983]), sufficientlyalleviated any prejudicial effect of permitting the jury to view the photograph (see People v Mendez, 104AD3d 1145, 1145 [4th Dept 2013], lv denied 21 NY3d 945 [2013]).
Defendant contends that the evidence is not legally sufficient to establish that herecklessly engaged in conduct that created a grave risk of death to the victim nor that hisconduct evinced a depraved indifference to human life. Defendant also contends that theverdict is against the weight of the evidence for the same reasons and because theevidence that he caused the victim's injury was not credible. As an initial matter,defendant failed to preserve for our review his challenge to the legal sufficiency of theevidence, both because his motion for a trial order of dismissal was not specificallydirected at the alleged deficiencies identified on appeal (see People v Gray, 86NY2d 10, 19 [1995]) and because he failed to renew his motion after presentingevidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). Nonetheless, " 'we necessarily review the evidence adducedas to each of the elements of the crime[ ] in the context of our review of defendant'schallenge regarding the weight of the evidence' " (People v Stepney, 93 AD3d1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968 [2012]; see People v Danielson, 9NY3d 342, 349-350 [2007]). We conclude for the reasons that follow thatdefendant's challenge is without merit.
"A person is guilty of depraved indifference assault in the first degree when, '[u]ndercircumstances evincing a depraved indifference to human life, [that person] recklesslyengages in conduct which creates a grave risk of death to another person, and therebycauses serious physical injury to another person' " (People v Wilson, 32 NY3d1, 6 [2018], quoting Penal Law § 120.10 [3]). "To prove the requisitemens rea, the People must show both (1) recklessness creating a grave risk of death and(2) a depraved indifference to human life" (id.; see People v Barboni, 21NY3d 393, 400 [2013]). A person "may be convicted of [a depraved indifferencecrime] when but a single person is endangered in only a few rare circumstances,"primarily where the person exhibits "wanton cruelty, brutality or callousness directedagainst a particularly vulnerable victim, combined with utter indifference to the life orsafety of the helpless target" (People v Suarez, 6 NY3d 202, 212-213 [2005]; see People v Williams, 24NY3d 1129, 1132 [2015]). In other words, "depraved indifference is an utterdisregard for the value of human life—a willingness to act not because one intendsharm, but because one simply doesn't care whether grievous harm results or not"(Wilson, 32 NY3d at 6 [internal quotation marks omitted]; see People v Feingold, 7 NY3d288, 296 [2006]). "The mens rea of depraved indifference to human life can, likeany other mens rea, be proved by circumstantial evidence" (Feingold, 7 NY3d at296).
Here, viewing the evidence in light of the elements of the crime as charged to thejury (see Danielson, 9 NY3d at 349), although an acquittal would not have beenunreasonable, we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary todefendant's assertion, the credible medical evidence refuted his claim to policeinvestigators and others that the victim's injury was the result of an accidental fall downthe stairs (see People vWaite, 145 AD3d 1098, 1100 [3d Dept 2016], lv denied 29 NY3d 953[2017]; People v Bowman,48 AD3d 178, 180, 184-185 [1st Dept 2007], lv denied 10 NY3d 808[2008]). Indeed, the treating pediatric doctors testified that the victim had sustained abrain injury that was consistent with the infliction of significant blunt trauma to the headwith force similar in magnitude to a high-speed car accident and was inconsistent with anaccidental fall down the stairs (see People v Warrington, 146 AD3d 1233, 1236 [3d Dept2017], lv denied 29 NY3d 1038 [2017]; Waite, 145 AD3d at 1100; see also People v Kuzdzal, 144AD3d 1618, 1619 [4th Dept 2016], revd on other grounds 31 NY3d 478[2018]). In addition, the jury was justified in concluding beyond a reasonable doubt thatdefendant inflicted the injury upon the victim inasmuch as the undisputed evidenceestablished that the victim was in defendant's exclusive care at the time the injuryoccurred (see People vKeegan, 133 AD3d 1313, 1316 [4th Dept 2015], lv denied 27 NY3d1152 [2016]).
Defendant further asserts that the evidence is consistent only with the conclusion thatthe person who inflicted the victim's injury acted intentionally and, therefore, theevidence does not establish the requisite mens rea component of recklessness. Thatassertion lacks merit. Although "[i]t may be true that the evidence presented to the juryleads inexorably to the conclusion that [defendant] acted voluntarily in his. . . conduct against the [victim] . . . , it does not [lead to theexclusive conclusion] that he intended to cause death or serious physical injury,in the sense of having that as a conscious objective or purpose" (Barboni, 21NY3d at 404; see Wilson, 32 NY3d at 8). The evidence in this case would nothave "compelled the jury to infer that defendant's state of mind was one of intent ratherthan recklessness" (Barboni, 21 NY3d at 404-405). Instead, the jury was justifiedin concluding beyond a reasonable doubt that defendant was aware of and consciouslydisregarded a grave risk of death to the infant (see Penal Law§§ 15.05 [3]; 120.10 [3]; People v Dallas, 119 AD3d 1362, 1366 [4th Dept 2014],lv denied 24 NY3d 1083 [2014]).
Defendant further asserts that the People did not establish the requisite mens reacomponent of depraved indifference to human life because he sought assistance for thevictim. We reject that assertion. Here, the evidence established that the injury wasinflicted sometime between 2:00 p.m., when defendant was left as the sole adultcaretaker of the victim, and 2:44 p.m., when defendant called his fiancée, and thatdefendant did not call 911 until 2:56 p.m. The evidence therefore established thatdefendant did not immediately seek medical assistance following the injury; instead,according to his own statements to police investigators, he placed the victim on the couchwhere she began to vomit, then took the victim upstairs to wash her off in the bathtubwhere she somewhat responded to the water, returned downstairs to change the victim'sdiaper, and eventually called his fiancée and thereafter waited until her arrivalseveral minutes later to call 911. We conclude that "[k]nowing the brutal origin of theinjuries and the force with which they were inflicted makes it much less likely thatdefendant was holding out hope . . . that the child's symptoms were merelysigns of a trivial injury or illness. Thus . . . it is significant that defendantwas the actor who had inflicted the injuries in the first place" (Barboni, 21 NY3dat 402; see Dallas, 119 AD3d at 1366). In light of the totality of the credibleevidence, including one of the recorded telephone conversations occurring less than aweek before the incident in which defendant expressed that the victim was "[his]property" with which he could do whatever he wanted, thereby evincing his utterindifference to the victim's humanity, as well as "defendant's knowledge of how theinjuries were inflicted and his failure to seek immediate medical attention," we concludethat the jury was justified in concluding that "defendant evinced a wanton and uncaringstate of mind" (Barboni, 21 NY3d at 402; see Dallas, 119 AD3d at1366).
Moreover, contrary to defendant's additional assertion, "the fact that [he may haveappeared agitated,] panic-stricken and [emotional] by the time he finally did summon aiddoes not alter the case" (Waite, 145 AD3d at 1102). Here, "[t]he jury couldrationally have concluded that he had the requisite mental state of callous indifferenceduring the attack and the period in which he failed to seek [immediate] medicalassistance . . . , and that he did not become [emotional] until he realized thatthe grievous harm he had inflicted could not be concealed" or remedied (id.).Defendant's " 'state of mind and the real reasons for [his later actions]. . . implicate[d] credibility questions' for the jury to resolve," and weconclude that there is no basis to disturb its determination that defendant's ostensible"belated expressions of concern did not reflect any interest in the victim's welfare"(Warrington, 146 AD3d at 1237).
Defendant further contends that he was denied effective assistance of counsel basedon various alleged errors made by defense counsel. We reject that contention." '[I]t is incumbent on defendant to demonstrate the absence of strategic or otherlegitimate explanations' for [defense] counsel's alleged shortcomings" (People vBenevento, 91 NY2d 708, 712 [1998], quoting People v Rivera, 71 NY2d705, 709 [1988]), and defendant failed to meet that burden here. Viewing the evidence,the law, and the circumstances of this case, in totality and as of the time of therepresentation, we conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, defendant's sentence is not unduly harsh or severe. Present—Centra,J.P., Peradotto, NeMoyer, Winslow and Bannister, JJ.