People v. Balls

• Decision Date: 06 March 1986
• Citation: 118 A.D.2d 887,499 N.Y.S.2d 454
• Parties: The PEOPLE of the State of New York, Respondent, v. Victor BALLS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 454

499 N.Y.S.2d 454

118 A.D.2d 887

The PEOPLE of the State of New York, Respondent, v. Victor BALLS, Appellant.

Supreme Court, Appellate Division Third Department.

March 6, 1986.

Douglas P. Rutnik, Public Defender (Shawn D. Flaherty, of counsel), Albany, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered November 21, 1983, upon a verdict convicting defendant of the crime of criminally negligent homicide.

On August 17, 1983, defendant was charged in a one-count indictment with manslaughter in the second degree as the result of the death of his seven-week-old daughter. At trial, the People introduced defendant's sworn statement into evidence in which he outlined the following pertinent events. On August 13, 1983, after returning home from work at about 5:00 A.M., defendant engaged in an argument with his girlfriend, Tammy Decker, the infant's mother. Thereafter, the infant awakened and defendant proceeded to feed and play with her. After Decker left for work at 7:30 A.M., defendant, who was now alone with the infant, played with her while lying on his bed. During this period, the infant "bumped her forehead against [defendant's] forehead, slightly hard, about two or three times". The infant also struck the back of her head on the inside area of defendant's knees several times. Despite the fact that the infant was crying throughout this period, defendant laid her on the bed and "pushed the mattress around her, hard enough to bounce her up and down". Defendant put the infant to sleep at about 9:00 A.M. and he went to sleep himself until 12:30 P.M. At that point, the infant felt cold and defendant could not awaken her. He then walked to his parents' home, where he asked his sister to call the police. The responding officer testified that the call was received at approximately 1:30 P.M. No other direct testimony was presented as to what transpired during this period, except for Decker's testimony confirming defendant's version of the events before she left for work. Emergency assistance failed to resuscitate the infant, who, according to the medical testimony, had sustained a fractured skull. Defendant was convicted of the lesser included offense of criminally negligent homicide and sentenced to an indeterminate term of imprisonment of 1 1/3 to 4 years. This appeal ensued.

The principal issue before us is whether the prosecutor's comments during summation were so egregious as to have deprived defendant of a fair trial. Initially, we note that while defendant registered only one specific objection during the summation, his postsummation request for a mistrial on the basis of the prosecutor's conduct was sufficient to preserve his objections for appellate review (see, People v. Bailey, 58 N.Y.2d 272, 275, 460 N.Y.S.2d 912, 447 N.E.2d 1273; People v. Medina 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276). While defendant points to several objectionable comments made during the prosecutor's summation, only one warrants extended discussion. Specifically, the challenged comment concerned defendant's conduct while the rescue workers were attempting to save the infant. The prosecutor stated that "[defendant] wasn't hysterical, he wasn't asking the paramedics 'What happened to my baby? What happened? Why isn't my baby breathing?' Because he caused the death."

Defendant maintains that this reference to his prearrest silence constitutes reversible error. We disagree. In this State, a defendant's pretrial silence may not be used for impeachment purposes (People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933). In determining the propriety of these comments, it is significant that during summation, defense counsel characterized defendant as "staring blankly at a wall" and unable to respond during the rescue attempt, i.e., in a condition of shock. As such, the prosecutor's comments may be considered a response "in kind" (see, People v. Wood, 66 N.Y.2d 374, 380, 497 N.Y.S.2d 340, 488 N.E.2d 86; People v. Morgan, 66 N.Y.2d 255, 259, 496 N.Y.S.2d 401, 487 N.E.2d 258; People v. Patterson, 83 A.D.2d 691, 692, 442 N.Y.S.2d 280). More important, the comments were not so much an attempt to impeach defendant, who did not testify, by referring to his pretrial silence as in People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933, but more of a behavorial characterization akin to that made in People v. Morgan (supra), which the Court of Appeals ultimately deemed harmless in nature. We reach the same conclusion here.

Of course, we do not reach the question of harmless error unless, eliminating the error, there is overwhelming proof of guilt (People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787). In addition to defendant's statement placing him in exclusive control of the infant and indicating that he may have hurt her while playing, the People's medical expert, Dr. Jack Davies, testified that the child had sustained a comminuted skull fracture and that death followed virtually immediately from a violent blow to the head. An autopsy revealed at least five areas of impact and fresh hemorrhaging. Davies further opined that the fatal impact could not have occurred prior to the day in question. Viewing the circumstantial evidence in this case in a light most favorable to the People (People v. Morgan, supra, 66 N.Y.2d p. 256, 496 N.Y.S.2d 401, 487 N.E.2d 258), we find the evidence amply supports the verdict (see, People v. Kirk, 112 A.D.2d 467, 490 N.Y.S.2d 881). While several other comments attributed to the prosecution were inappropriate, we find that, in the context of the entire summation and the overwhelming evidence of guilt, these comments were harmless error and did not render the trial unfair ^* (People v. Morgan, supra; People v. Hopkins, 58 N.Y.2d 1079, 462 N.Y.S.2d 639, 449 N.E.2d 419; People v. Patterson, 88 A.D.2d 694, 695, 451 N.Y.S.2d 321, affd. 59 N.Y.2d 794, 464 N.Y.S.2d 751, 451 N.E.2d 498; People v. Lewis, 79 A.D.2d 977, 434 N.Y.S.2d 450).

Defendant's remaining contentions of error...