People v. Baker

• Decision Date: 11 February 2004
• Docket Number: 12332.
• Citation: 771 N.Y.S.2d 607,2004 NY Slip Op 00623,4 A.D.3d 606
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUNICE M. BAKER, Appellant.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 606

771 N.Y.S.2d 607

2004 NY Slip Op 00623

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUNICE M. BAKER, Appellant.

12332.

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 11, 2004.

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered April 7, 2000, upon a verdict convicting defendant of the crime of murder in the second degree.

ROSE, J.

After a three-year-old child died while defendant was babysitting in the child's home, she was charged with both intentional and depraved indifference murder. At trial, the evidence established that, on a warm summer night, the victim died of hyperthermia as a result of her prolonged exposure to excessive heat in a bedroom of her foster parents' apartment. The excessive heat was caused by the furnace having run constantly for many hours as the result of a short circuit in its wiring. The victim was unable to leave her bedroom because defendant engaged the hook and eye latch on its door after putting her to bed for the night. Defendant then remained in the apartment watching television while the furnace ran uncontrollably. The victim's foster parents and another tenant testified that when they returned in the early morning hours and found the victim lifeless in her bed, the living room of the apartment where defendant sat waiting for them felt extremely hot, like an oven or a sauna, and the victim's bedroom was even hotter. Temperature readings taken later that morning during a police investigation while the furnace was still running indicated that the apartment's living room was 102 degrees Fahrenheit, the victim's bedroom was 110 degrees Fahrenheit and the air coming from the vent in the bedroom was more than 130 degrees Fahrenheit.

In characterizing defendant's role in these events, the prosecutor argued that the key issue for the jury was whether or not defendant had intended to kill the victim. The prosecution's proof on this issue consisted primarily of the second of two written statements given by defendant to police during a four-hour interview conducted a few hours after the victim was found. In the first statement, defendant related that she had been aware of the oppressive heat in the victim's bedroom, kept the victim latched in because the foster parents had instructed her to do so,^* had not looked at or adjusted the thermostat even though the furnace was running on a hot day, heard the victim kicking and screaming to be let out and felt the adverse effects of the heat on herself. The second statement, which defendant disavowed at trial, described her intent to cause the victim's death by turning up the thermostat to its maximum setting, closing all heating vents except the one in the victim's bedroom and placing additional clothing on the victim which she then removed after the victim died. Because these actions differed from those described in the first statement and each reflects an intent to kill the victim, the jurors' initial task, as proposed by the prosecutor during summation, was to decide which statement they would accept.

After trial, the jury acquitted defendant of intentional murder (see Penal Law § 125.25 [1]), thereby rejecting the second statement, and instead convicted her of depraved indifference murder of a child (see Penal Law § 125.25 [4]). County Court sentenced her to a prison term of 15 years to life, and she now appeals.

Initially, we are unpersuaded that the prosecutor's summation improperly impugned defendant's credibility. Given the contradictions between defendant's testimony disavowing her second statement and the testimony of the officer who prepared that statement, the prosecutor's portrayal of the issue for the jury as being whether defendant or the police officer had lied represents a fair commentary on the evidence (see People v Jones, 283 AD2d 665, 668 [2001], lv denied 96 NY2d 903 [2001]; People v Hughes, 280 AD2d 694, 696 [2001], lv denied 96 NY2d 801 [2001]; cf. People v Russell, 307 AD2d 385, 386 [2003]). In any event, defendant demonstrated no resulting prejudice as the jury acquitted her of the intentional murder charge founded upon the second statement (see People v Ciborowski, 302 AD2d 620, 622-623 [2003], lv denied 100 NY2d 579 [2003]; People v Alexander, 255 AD2d 708, 710 [1998], lv denied 93 NY2d 897 [1999]).

To the extent that defendant also challenges the effectiveness of her trial counsel, the record here confirms that he provided more than meaningful representation at trial by making timely and proper objections, carefully questioning defendant, vigorously cross-examining the prosecution's witnesses and persuading the jury to disregard the second statement. His efforts resulted in defendant's acquittal on the intentional murder charge, which had been the focus of the prosecution (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baptiste, 306 AD2d 562, 569-570 [2003]).

We agree with defendant, however, that the evidence in the record is legally insufficient to prove the gross recklessness and additional aggravating circumstances necessary for a conviction of depraved indifference murder. In our view, the jury could not reasonably infer from the evidence a culpable mental state greater than criminal negligence due to the unique combination of events that led to the victim's death, as well as the lack of proof that defendant actually perceived and ignored an obvious and severe risk of serious injury or death.

A verdict is 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 (see People v Harper, 75 NY2d 313, 316 [1990]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Sullivan, 300 AD2d 689, 690-691 [2002], lv denied 100 NY2d 587 [2003]). Here, County Court instructed the jury as to the elements of intentional murder in the second degree, depraved indifference murder in the second degree, as well as the lesser included offenses of manslaughter in the first degree with intent to cause physical injury (see Penal Law § 125.20 [1], [4]), reckless manslaughter in the second degree (see Penal Law § 125.15 [1]) and criminally negligent homicide (see Penal Law § 125.10). The jury's finding that defendant was not guilty of intentional murder clearly indicates that it rejected defendant's second statement. That statement contains an explicit admission of an intent to kill the victim and a description of a series of acts reflecting such an intent. Inasmuch as there is no other evidence, and no argument, that these acts were done for any other purpose, we must assume that the jury rejected the acts when it rejected the charge of intentional murder. Thus, we look elsewhere in the record to ascertain whether there is other evidence establishing first, that the circumstances surrounding defendant's conduct evince a depraved indifference to human life, and second, that defendant perceived and disregarded a substantial risk of serious injury or death.

To support defendant's conviction of depraved indifference murder of a child, there must be proof that, "based on an objective assessment of the risk defendant recklessly created and disregarded, the likelihood of causing [serious physical injury or] death from defendant's conduct was so obviously severe that it evinced a depraved indifference to human life" (People v Sanchez, 98 NY2d 373, 384 [2002]; see People v Tinning, 142 AD2d 402, 407 [1988], lv denied 73 NY2d 1022 [1989]). Although the excessive heat in the victim's bedroom ultimately proved fatal and defendant failed to provide relief from the heat by removing the victim from her bedroom or attempting to reduce the heat, the evidence does not establish that her acts and omissions were "committed under circumstances which evidenced a wanton indifference to human life or a depravity of mind" (People v Register, 60 NY2d 270, 274 [1983]). "Illustrative of such conduct is driving an automobile on a city sidewalk at an excessive speed and striking a pedestrian without applying the brakes, firing several bullets into a house, beating an infant over a five day period, and placing a bomb in a public place. In each illustration the basic crime was aggravated by additional egregious conduct" (People v Murphy, 235 AD2d 933, 936 [1997], lv denied 90 NY2d 896 [1997] [citations omitted]). In cases where the victim is a child, there typically are one or more instances of direct harmful contact with the child, as well as other egregious conduct (see People v Mills, 1 NY3d 269, 275-276 [2003] [adult struck 12-year-old victim from behind hard enough to cause him to hit his head on a concrete pier and slip off the pier into the water, and then abandoned the submerged victim without summoning help]; People v Strawbridge, 299 AD2d 584, 593 [2002] [mother dropped her newborn child into a toilet, placed her in a plastic bag causing death by asphyxiation and disposed of her body in a dumpster]; People v Mitchell, 289 AD2d 776, 779 [2001], lv denied 98 NY2d 653 [2002] [mother repeatedly struck infant daughter's head against a wall causing skull fractures and did not call for emergency aid until several hours later]; People v Dexheimer, 214 AD2d 898, 901 [1995], lv denied 86 NY2d 872 [1995] [adult repeatedly struck young child and failed to summon emergency aid]; People v Bryce, 174 AD2d 945, 946 [1991], lv denied 79 NY2d 854 [1992] [father violently shook infant son and inflicted multiple impacts causing severe head trauma]; cf. People v Sika, 138 AD2d 935, 935-936 [1988], lv denied 72 NY2d 866 [1988] [mother's failure to provide adequate nourishment and seek medical assistance for infant son was held not to be "so brutal, callous or wanton that it evinced a depraved indifference to human life"]). Here, by contrast, there was neither obviously dangerous conduct by defendant nor harmful physical contact between defe...