| People v Heil |
| 2020 NY Slip Op 06546 [188 AD3d 911] |
| November 12, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael P. Heil, Appellant. |
Philip H. Schnabel, Chester, NY, for appellant, and appellant pro se.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (CraigStephen Brown, J.), rendered November 17, 2017, convicting him of murder in the second degree(two counts), manslaughter in the first degree, and manslaughter in the second degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of murder in the second degree (two counts), manslaughter inthe first degree, and manslaughter in the second degree in connection with the death of hisseven-week-old son (hereinafter the child). On the date of the incident, the child was in theexclusive care of the defendant from approximately 5:00 p.m. until midnight while the child'smother was at work. The defendant called 911 and reported that the child was having difficultybreathing shortly before midnight. The child was transported to a hospital, where he was found tobe in respiratory and cardiac distress and suffering from traumatic brain injury. The child passedaway at the hospital approximately two weeks later.
We find unpersuasive the defendant's contention, raised in his pro se supplemental brief, thatthe trial evidence failed to prove his guilt beyond a reasonable doubt. Initially, the defendantfailed to preserve for appellate review his challenge to the legal sufficiency of the evidence(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 491-492 [2008]). In any event, viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Indeed, the evidence presented by the People at trial, including the testimony of several treatingphysicians and medical experts, demonstrated that the child suffered a massive brain injury thatresulted in a hematoma and a "midline shift" of the brain tissue. The child also was found to havebruising on his lower body that was consistent with a "grabbing" injury, as well as bilateralretinal hemorrhaging and an avulsion of the optic nerve. Surgery was performed to relieve thepressure from the hematoma by removing necrotic brain tissue and part of the skull, but the childremained unresponsive and on life support until his passing.
The People's medical witnesses testified, inter alia, that the brain injury had been caused bytrauma, either by violent shaking of the child or by a substantial impact to the head, or both. Theyfurther testified that the injury had occurred almost immediately prior to the child's arrival at thehospital. The evidence also established, inter alia, that the child was in good condition when themother left him in the defendant's exclusive care at 5:00 p.m. on the date of the incident, and thatthe child's pediatrician had examined the child two days earlier and found him to be generallyhealthy, apart from an improving bronchial condition and colic. Additionally, the defendantrepeatedly had expressed anger and frustration at the child's frequent crying, including on thenight of the incident, and he did not accompany the child to the hospital or disclose to theresponding EMTs or to medical personnel at the hospital the circumstances of the child'sinjuries.
Contrary to the defendant's contention, the foregoing evidence was legally sufficient to provebeyond a reasonable doubt that he caused the fatal injuries to the child (see People v Spears, 154 AD3d783, 786 [2017]; People vSnyder, 91 AD3d 1206, 1211-1212 [2012]), and that he acted with the requisite mensrea for depraved indifference murder in doing so (see Penal Law § 125.25[4]; People v Suarez, 6 NY3d202, 214 [2005]; People v Hall,182 AD3d 1023, 1025-1026 [2020]; People v Bowman, 48 AD3d 178, 181 [2007]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348-349 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as to each ofthe charges of which the defendant was convicted was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]).
The defendant failed to preserve for appellate review his contention that the trial court erredin denying the jury's request for written definitions of some of the charged crimes, as he did notobject to the trial court's denial of that request (see People v Bonds, 157 AD3d 713, 714 [2018]; People v Fabers, 133 AD3d 616,617 [2015]). In any event, the defendant's contention lacks merit, since the defense, upon beingproperly advised of the request, did not consent to providing the jury with written copies of thestatutory elements of the crimes charged, and the trial court therefore was not authorized to grantthe jury's request (see CPL 310.30).
The defendant failed to preserve for appellate review his current challenges to theprosecutor's summation remarks (see CPL 470.05 [2]; People v Mitchell, 137 AD3d 944, 945 [2016]; People v Banks, 74 AD3d 1214,1215 [2010]). In any event, the challenged remarks were either a fair response to the defensesummation, fair comment on the evidence, or otherwise did not deprive the defendant of a fairtrial (see People v Hubsher, 176AD3d 972, 974 [2019]; People vKaval, 154 AD3d 875, 876 [2017]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Mastro, J.P., Miller, Maltese and Wooten, JJ., concur.