276 A.D.2d 237, People v. Denis

Citation276 A.D.2d 237, 716 N.Y.S.2d 718
Party NamePeople v. Denis
Case DateNovember 22, 2000

Page 237

276 A.D.2d 237

716 N.Y.S.2d 718

The People of the State of New York, Respondent,


Marvin L. Denis, Appellant.

Supreme Court of New York, Third Department

November 22, 2000.

Appeal from a judgment of the Delaware County Court (Robert L. Estes, J.), rendered August 23, 1999, upon a verdict convicting defendant of the crime of murder in the second degree.

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Dershowitz, Eiger & Adelson, New York City (Nathan Z. Dershowitz of counsel), for appellant.

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Richard D. Northrup, Jr., District Attorney of Delaware County, Delhi, for respondent.


Spain, J.

On May 3, 1992 Rosemary Denis died after a fall off a cliff ledge at the top of Russell Brooks Falls in the Town of Colchester, Delaware County. A pool of water is located at the base of the falls. The victim and defendant, her husband, were there on an outing at the time. A subsequent autopsy revealed that the cause of the victim's death was drowning and not the injuries she sustained as a result of the fall. More than six years later--in September 1998--defendant was indicted on a single count of intentional murder in the second degree. The People's bill of particulars alleged that defendant intentionally caused the victim's death by drowning her. It was never determined what caused the victim's fall. After a jury trial in 1999 at which, among others, two witnesses testified to observing defendant holding the victim's body face down and under water in the pool of water at the base of the falls, defendant was convicted as charged and later sentenced to an indeterminate prison term of 25 years to life. On defendant's appeal he raises a number of issues, only some of which require our discussion and none of which warrant disturbing the judgment.

Defendant's principal contention is that the jury's verdict was not supported by legally sufficient evidence and he also argues that the verdict was contrary to the weight of the evidence. Specifically, defendant argues that the People failed to offer sufficient evidence that the victim was alive and had not already drowned at the time he is alleged to have reached her and held her underwater and, thus, they failed to prove that he caused or contributed to the victim's death. Defendant's motion to dismiss the charge at the close of the People's case preserved the issue for our review. Upon our review of the evidence in the light most favorable to the prosecution (see, People v Williams, 84 N.Y.2d 925, 926; People v Contes, 60 N.Y.2d 620, 621), we find that the trial evidence was legally sufficient to uphold the jury's determination that defendant intentionally caused his wife's death.

To sustain a conviction for intentional murder the People must establish, beyond a reasonable doubt, that defendant caused the death of the victim and that he did so intentionally (see, Penal Law §§ 125.00, 125.25 [1]; People v Dlugash, 41

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N.Y.2d 725, 731). Thus, the People were required to prove that defendant's conduct in holding his wife's head underwater was the actual, and a sufficiently direct, cause of her death by drowning, in that "it forged a link in the chain of causes which actually brought about the death" (People v Stewart, 40 N.Y.2d 692, 697; see, People v Dlugash, supra; People v Kibbe, 35 N.Y.2d 407, 412), as it would not have been murder for defendant to have held underwater the victim's dead body (see, People v Dlugash, supra, at 731).

An appellate court reviewing a challenge to the legal sufficiency of the trial evidence, including circumstantial evidence, must view the evidence in the light most favorable to the prosecution and determine whether any valid line of reasoning and permissible inferences could lead any rational person to the conclusion reached by the trier of fact on the basis of the evidence presented at trial (see, People v Williams, supra; People v Bleakley, 69 N.Y.2d 490, 495; People v Contes, supra). At trial, the forensic pathologist who performed the autopsy testified that he determined that the cause of death was drowning, specifically "dry drowning" in which the victim suffered a laryngeal spasm due to exposure to water in her airway which closed off the airway, resulting in asphyxiation or lack of oxygen. He further stated that while the victim had sustained head and other injuries, these injuries occurred prior to her death and were not the cause of her death. He could not opine whether the victim was rendered unconscious by the trauma to her head. The pathologist also testified that it generally takes four minutes from the time a person's airway is obstructed until irreversible brain damage occurs and either brain death or cardiopulmonary arrest will result.

Defendant's medical expert, also a forensic pathologist, concurred that the cause of death was "dry drowning" and opined that the victim almost certainly sustained a concussion and was unconscious. He indicated that he could not rule out the possibility that the victim's death may in part have been caused by vagal reflex--caused by trauma to the vagus nerve which controls breathing and heart functioning--resulting in cardiac arrest. He opined that in over half of the cases, laryngeal spasms would begin to subside on their own if a person were removed from water and that CPR may revive a person experiencing such a spasm, although sometimes administration of medication or insertion of an endotracheal tube are necessary to break the spasm. While the People's pathologist opined that submersion in cold water tends to slow

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down the body's metabolism and death by drowning, defendant's pathologist opined that it would have increased the potential for a laryngeal spasm and could have hastened cardiac arrest.

Also providing key testimony at trial were two eyewitnesses, Anthony Gooler and Robert Nevelle, who had been fishing near the base of the waterfall at the time. Critically, both testified to hearing what they believed was a scream emanate from the top of the falls and to thereafter seeing defendant run by them in the direction of the pool at the base of the falls. Defendant glanced at them but did not ask for their help. They soon decided to look into what was going on and walked over to the base of the falls. Both testified to observing defendant kneeling or leaning over the victim in the water, using his arms to hold the victim face down by the shoulders with her head fully immersed in the water and that defendant was not attempting to give the victim CPR, to pull her out of the water or to move her. When defendant looked up and saw them, he immediately rolled the victim's body over, pulling her head out of the water without any apparent physical difficulty and only then did he yell for them to get help. Gooler left and summoned emergency help, while Nevelle remained at the scene and observed defendant--at Nevelle's suggestion--pull the victim's body from the water onto a flat rock, again without any apparent difficulty. Nevelle then left to meet emergency personnel. Testimony at trial established that the pool of water was approximately 12 to 18 inches deep.

The first emergency medical technician (hereinafter EMT) to arrive on the scene testified that when he approached the scene he observed defendant kneeling in the water looking down at the victim's body--which was again floating in the water--but not doing anything. When defendant looked up and saw him, he began making gestures or heart compressions as if performing CPR on the victim but he was not supporting her head, and her body was bobbing up and down as she was not on a hard surface as required to perform CPR compressions. Defendant asked for help and the EMT immediately pulled the victim from the water onto a rock--which was right next to the victim--which he testified required "not very much" effort on his part; the EMT determined that she had no pulse and was not breathing. Defendant walked away and said nothing further.

John Skinner, a State Police investigator assigned to this case, questioned defendant at the scene and later at the State

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Police station where he obtained a written statement from defendant. He testified that defendant was "very upbeat," "smiling, talking" and was "very relaxed." Skinner also testified that defendant told him that after he and his wife took photographs together at the top of the falls overlook, defendant began walking down the path to take more pictures of the falls, leaving his wife at the overlook. When he was about three quarters of the way down he heard a scream, took another step or two, became nervous, dropped his camera tripod and ran back to the overlook but could not find his wife; he then looked over the ledge and saw her lying face down in the pool of water at the base of the falls, at which point he screamed and ran down the path to his wife. Defendant claimed that he had difficulty rolling her over in the water, performing CPR, dragging her to shore and removing her face from the water because she was heavy. This was essentially the same exculpatory account as appeared in defendant's written statement.

Defendant testified at trial providing the same general account of what occurred as he had given to the State Police. He testified that after observing his wife from the top of the cliff lying in the pool of water below, he ran as fast as he could down the path into the water but never saw anyone--not even the fishermen--along the path. Upon reaching her in the water, defendant removed her head from the water and tried to turn her over but he wasn't able to because the water was too shallow; he then pushed her into a deeper section, easily turned her over and slid her head and shoulders onto a flat rock. He attempted CPR--which he had been trained to do--by doing compressions and blowing air in her mouth but it would not go in, at which point he saw a man and yelled for help. Realizing he was not reviving her,...

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