THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ALICIA LEWIE, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
November 25, 2009
889 NYS2d 265
On the evening of November 13, 2007, a 911 call was received at the Warren County Sheriff‘s Department from a woman later identified as defendant to the effect that she was en route to the hospital because she had fallen in the shower while holding her infant child and, as a result, the child was severely injured. Upon defendant‘s arrival at Glens Falls Hospital, emergency
Because of the injuries noted on the child upon his initial admission into the hospital and inconsistenciеs in the statements made by defendant and her roommate/boyfriend, Michael Flint, Jr., as to the cause of these injuries, emergency room personnel notified the Glens Falls Police Department, which immediately commenced an investigation. Defendant repeated the claim to the police that she had made to emergency room personnel that the child had been injured when she fell while holding him in the shower. Over the next 48 hours, defendant made a series of statements to the police, two of which were reduced to writing, in which she acknowledged that she had lied when she had said that the child was with her in the shower when injured; instead, defendant told police that on November 12, 2007 she had gone to work and left the child with Flint, who, during a telephone call later that day, told her that the child had been injured when he slipped out of Flint‘s hands in the shower and struck his head and neck on the faucet and shower bar. According to dеfendant, when she told her coworkers what had happened with the child, they advised her to examine the child closely for any evidence of head trauma and consider taking him to a doctor for appropriate medical attention. Upon her return home that evening, defendant saw that the child‘s eyes were black and blue, his lip was swollen and there were red marks on his neck and torso. However, defendant claimed that the child did not apрear to have a concussion and, when he otherwise appeared normal, she decided not to seek medical attention. Instead, she put the child to bed and gave him Tylenol, Orajel and a bottle of formula. Throughout the night, defendant checked on the child‘s condition and, on the following morning, noted that while some of the bruises on his face looked to be healing, the injuries to his eyes, neck and torso had blackened and appeared to have grown worse.
The post-mortem examination established that the child had sustained numerous blunt force injuries tо his head and face, abrasions across his neck and bite marks on both arms.2 X rays revealed that the child had numerous fractures to his ribs, some of which had occurred as long ago as four weeks prior to his death and were in various stages of healing. In addition, it was confirmed that the child‘s liver had been lacerated and that there had been a substantial accumulation of blood in and around his brain. The cause of death was established as cerebral edema and subdural hemorrhage with a subarachnoid hemorrhage due to closed head injuries.
After the child‘s death, defendant was brought to police headquarters where, for a second time, she was read her Miranda warnings and, once again, agreed to provide the police with a written statement regarding the circumstances surrounding her son‘s death. In this statement, defendant repеated much of what she had previously told the police regarding what had transpired in the days leading up to her son‘s death but, for the first time, claimed that when she had arrived home on the evening of November 12, 2007 and saw the child‘s injuries, she attempted to bring him to a local hospital, but Flint prevented her. She stated that she believed Flint would hurt her if she
Preliminarily, defendant argues that once shе was assigned counsel in the Family Court removal proceeding, any statement she subsequently made to the police should have been suppressed as having been taken in violation of her constitutional right to counsel. We disagree. While the criminal investigation and the Family Court removal proceeding “arise out of the same matrix, they are unrelated in that the [Family Court] proceeding was a civil proceeding focusing on the children, whereas the purpose of this action was to secure a criminal conviction against defendant” (People v Kent, 240 AD2d 772, 773 [1997], lvs denied 90 NY2d 1012 [1997], 91 NY2d 875 [1997]; see People v Roselle, 84 NY2d 350, 355 [1994]; People v Smith, 62 NY2d 306, 314-315 [1984]; People v Snyder, 221 AD2d 870, 871 [1995], lv denied 88 NY2d 885 [1996]). Since the Family Court proceeding was civil in nature, the assignment of counsel in that proceeding did not automatically trigger defendant‘s right to counsel in the criminal investigation that was being conducted to determine the cause of her son‘s death.
As for the statements that were admitted into evidence at trial, we note that defendant was not in custody when, prior tо her son‘s death, she was first interviewed by the police at the hospital or later that same evening when she agreed to ac
Defendant also contends that her convictions for manslaughter in the second degree and reckless endangerment in the first degree were not based upon legally sufficient evidence and were against the weight of the evidence introduced at trial. As for hеr claim of legal sufficiency, we note that a criminal conviction will be sustained as being supported by legally sufficient evidence “when the proof, viewed in the light most favorable to the prosecution, establishes the elements of the crime beyond a reasonable doubt” (People v Baker, 4 AD3d 606, 609 [2004], lv denied 2 NY3d 795 [2004]; see People v Barreto, 64 AD3d 1046, 1048 [2009]). Here, defendant stands convicted of two counts of manslaughter in the second degree, the first alleging conduct that occurred between November 11, 2007 and November 14, 2007, while the second focused on a continuing course of conduct that occurred from October 1, 2007 until the date of the child‘s death. Count six, as amplified by the bill of particulars, alleges that defendant, despite being aware that the child had been seriously injured while in Flint‘s care on November 12, chose not to seek medical care for the child and, as a result, he died. Defendant contends that the evidence at trial introduced on this charge failed to establish that she was aware of the true extent of her son‘s injuries when she first learned of his fall in the shower and, as a result, could not have known the mortal risk those injuries posed to his health and well-being prior to taking him to a nearby hospital. She also argues that even if it were proven that she was truly aware of the seriousness of those injuries on the night of November 12, it was not established at trial that these injuries actually caused his death.
While it is undisputed that defendant, after bеing told by Flint of the incident in the shower, observed that the child had bruises and abrasions on his head, face and body, it was not established at trial that, based upon these observations, she
We do not reach the same conclusion as to defendant‘s conviction on the remaining charge of mаnslaughter or her conviction for reckless endangerment in the first degree. As previously noted, this charge of manslaughter focused on a course of conduct that occurred over a 45-day period immediately prior to the child‘s death. As amplified by the bill of particulars, it alleges that during this period, defendant actually became aware that Flint was physically abusing her son and chose to ignore the grave risk this conduct posed for the child by repeatedly leaving him in Flint‘s unsupervised care. In that regard, witnesses, including members of defendant‘s own family, her friends and coworkers, all testified that defendant told them
As for defendant‘s conviction for reckless endangerment in the first degree, it must be shown by legally sufficient evidence that defendant recklessly engaged in conduct that created a grave risk of death to her son, and did so under “circumstances evincing a depraved indifference to human life” (
Finally, despite defendant‘s contention to the contrary, we find that the convictions of manslaughter in the second degree under count seven and reckless endangerment in the first degree were supported by the weight of the evidence. We note from the evidence presented what is painfully obvious and not the subject of meaningful dispute—this eight-month-old child had been severely battered and physically abused over much of his life and that these assaults were perpetrated upon him during a period of time when defendant was charged with his custody and ongoing care. Defendant‘s statements, coupled with her own observations of the injuries, that the child sustained during this period, demonstrate that she was well aware of what Flint was doing to her child and knew the risk Flint posed to him. Despite this knowledge, defendant chose not only to ignore that risk, but to continue to expose the child to this peril by leaving him alone in Flint‘s care. While defendant puts much of this testimony in issue—and at trial denied ever being аbused by Flint or seeing him abuse her child—it is for the jury in the final analysis to assess the credibility of the witnesses who testified (see People v Barreto, 64 AD3d at 1048). Having reviewed and weighed the evidence in the record, it cannot be said that the jury‘s verdict was against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-645 [2006]; People v Bleakley, 69 NY2d at 495).
Defendant also challenges County Court‘s failure to grant her motion for a mistrial based on juror misconduct. During jury deliberations, one of the jurors passed a note to County Court asking if she could read a statement in which she thanked all involved, including defendant, for allowing her to serve as a juror, asked the court for the name of a divorce lawyer and requested the name and phone number of the Assistant District Attorney whom she described as a “cutie.” The court immediately reprimanded the juror for the content of the statement, characterized her actions as inappropriate and conducted an inquiry as to her ability to remain fair and impartial. After the сourt met with the juror and concluded that the juror had not engaged in conduct that rendered her unqualified to serve, defense counsel moved for a mistrial, al-
According to
Defendant next contends that County Court committed reversible error in its response to the jury‘s request for a supplemental instruction on the definition of recklessly (see
Defendant also takes exception to County Court‘s statement made in its supplemental charge that such risk involves “what [defendant] saw, what [defendant] should have seen, and what [defendant] disregarded” (emphasis added; see
Defendant challenges approximately 45 evidentiary rulings made by County Court and contends that each involved evidence that was either irrelevant, prejudicial or inadmissible as hearsay. We have reviewеd every challenge and, in addition to finding that many are unpreserved due to defendant‘s failure to object to them, we also are of the view that they are without merit or do not amount to reversible error (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Phillips, 55 AD3d 1145, 1147-1148 [2008], lv denied 11 NY3d 899 [2008]).
Finally, inasmuch as the sentence that defendant received on the remaining manslaughter conviction must run concurrent to any sentence imposed for her conviction of reckless endangerment, the sentence as rendered by County Cоurt must be modified accordingly (see
Cardona, P.J., Peters, Stein and McCarthy, JJ., concur.
Ordered that the judgments are modified, on the law, by reversing defendant‘s conviction of manslaughter in the second degree under count six of the indictment; dismiss said count and the sentence imposed thereon and direct that defendant‘s sentences on counts seven and eight of the indictment shall run concurrently to one another; and, as so modified, affirmed.