People v. SmithPeople v. Smith
Initially, we find that the admission of evidence of the victim‘s prior injuries, including a brain injury and retinal hemorrhage which had occurred three months earlier and were attributed to shаken baby syndrome, was proper because such evidence was “material and relevant on the issues оf whether defendant‘s actions evinced a depraved indifference to human life, whether [the victim‘s] death wаs accidental, and the identity of the perpetrator of the crime” (People v Holloway, 185 AD2d 646, 647 [1992], lv denied 80 NY2d 1027 [1992] [citation omitted]; see People v Henson, 33 NY2d 63, 72 [1973]; People v Caccese, 211 AD2d 976, 978 [1995], lv denied 86 NY2d 780 [1995]). Contrary to defendant‘s contention, County Court heard his arguments opposing the People‘s pretrial Molineux/Ventimiglia application, the relevant facts were not in dispute and the court issued a detailed ruling after weighing the evidence‘s probative value agаinst its potential for prejudice (see People v Milot, 305 AD2d 729, 731 [2003], lv denied 100 NY2d 585 [2003]). Moreover, defense counsel did not seek a limiting instruction and, thus, that issue is unprеserved (see
The medical evidence here established that thе victim‘s fatal injuries were caused by nonaccidental trauma, consistent with her head having been very violently shаken, and were inconsistent with defendant‘s account. The injuries included bruises on her head, a subdural hematoma, rеtinal hemorrhages in both eyes and multiple retinal detachments in one eye. The victim‘s prior injuries, which included broken bones, a subdural hematoma and retinal hemorrhage, began and continued while defendant was residing with and caring for the victim during the six months preceding her death. Even though the treating physicians and social workers attributed the prior injuries to child abuse and believed that defendant had inflicted them, he nonetheless asserts that no one ever directly informed him that shaking the victim violently in the future could cause death. Given defendant‘s awareness оf the victim‘s prior injuries and their medical consequences, as well as the extremely violent shaking needed tо have caused her fatal injuries, there is ample evidence that he was aware of and wantonly disregаrded the risk of death posed by his conduct. In addition, it was undisputed that after finding the victim unresponsive at 7:30 a.m. and being unablе to waken her, defendant made no attempt to seek medical care for more than nine hours. Moreover, he initially explained that the victim had hit her head on a door frame some days earlier after he pushed her during a game. In light of the evidence of the victim‘s injuries and defendant‘s attempt to cover up his conduct, the jury could reasonably conclude that the elements of recklessness and depraved indifference were proven (see People v Maddox, 31 AD3d 970, 972 [2006], lv denied 7 NY3d 868 [2006]; People v Henderson, 305 AD2d 940, 941-942 [2003], lv denied 100 NY2d 582 [2003]; People v Britt, 283 AD2d 778, 779-780 [2001], lv denied 96 NY2d 916 [2001]; People v Parrotte, 267 AD2d 884, 886 [1999], lv denied 95 NY2d 801 [2000]).
Having also considered this evidence in a neutral light and accorded due deferеnce to the jury‘s assessment of witness credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]), we conclude that the jury‘s finding that the victim‘s death resulted from acts that were reckless and done with depraved indifference was not against the weight of the evidence. On the separate issue of whether the fatal injuries were inflicted while the victim was in his care, defendant attempted tо prove that they could have been sustained much earlier. The expert medical testimony, however, made clear that the victim would have had impaired vision and other disabling symptoms soon after sustaining the retinal and cerebral hemorrhages. Since there was undisputed testimony that the victim had played and acted normally before defendant took care of her, the jury‘s finding as to when and at whose hand the injuries occurred also was not against the weight of the evidence (see People v Maddox, supra at 972-973; People v Strawbridge, supra at 593-594).
Lastly, defendant argues that the imposition of the maximum permissible sentence was harsh and excessive because his assault on the victim would have lasted only seconds and he had no prior criminal history. Considering that a brutal crime was perpetrated on a helpless infant and at sentencing defendant showed no remorse, we find no abuse of discretion or extraordinary circumstances warranting modification of the sentence (see People v Mitchell, 289 AD2d 776, 780 [2001], lv denied 98 NY2d 653 [2002]; People v Scott, 288 AD2d 846, 847 [2001], lv denied 97 NY2d 761 [2002]; People v Beaudoin, 198 AD2d 610, 610 [1993], lv denied 82 NY2d 922 [1994]; People v Bryce, 174 AD2d 945, 948 [1991], lv denied 79 NY2d 854 [1992]).
Cardona, P.J., Mercure, Peters and Lahtinen, JJ., concur.
Ordered that the judgment is affirmed.