People v. Basir

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: People v. Basir, 179 A.D.2d 662, 578 N.Y.S.2d 603 (N.Y. App. Div. 1992)
• Decision Date: 13 January 1992
• Parties: The PEOPLE, etc., Respondent, v. Fatimah BASIR, Appellant.

Page 603

578 N.Y.S.2d 603

179 A.D.2d 662

The PEOPLE, etc., Respondent, v. Fatimah BASIR, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 13, 1992.

William M. Kunstler, Ronald L. Kuby, and Elizabeth O'Connor Tomlinson, New York City (Michael Jackson, of counsel), for appellant (one brief filed).

Richard A. Brown, Dist. Atty., Kew Gardens (Seymour Roth, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, EIBER and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered January 4, 1988, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence that the defendant murdered her daughter consisted of her inculpatory statements to the police and others and a great deal of circumstantial evidence, including forensic evidence, photographs of the dead child, and a history of violence and abuse against the child and the defendant's surviving five children.

The defendant's assertion that the case consists solely of circumstantial evidence is incorrect (see, People v. Giuliano, 65 N.Y.2d 766, 492 N.Y.S.2d 939, 482 N.E.2d 557). A confession is direct evidence (see, People v. Rosner, 67 N.Y.2d 290, 295, 502 N.Y.S.2d 678, 493 N.E.2d 902; People v. Licitra, 47 N.Y.2d 554, 559, 419 N.Y.S.2d 461, 393 N.E.2d 456; People v. Lambert, 125 A.D.2d 495, 509 N.Y.S.2d 413; Richardson, Evidence § 145 [Prince, 10th ed., 1985 Supp]. The defendant's confessions, which consisted of statements that the child would never steal from her again because she "fixed her", "I did it", and "Allah, why did you make me do it again", constituted direct evidence of the defendant's guilt. Since the case against the defendant consisted of direct and circumstantial evidence, the "moral certainty" analysis does not apply in reviewing the sufficiency of the evidence presented (see, People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071; People v. Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806, 383 N.E.2d 108).

Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Indeed, the evidence, including evidence that the defendant beat the child repeatedly before strangling her, overwhelmingly proved that she was guilty of depraved indifference murder (see, Penal Law § 125.25[2]. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5].

Since proof of the murder rested on a combination of direct and circumstantial evidence, the court's failure to give a comprehensive "moral certainty" instruction to the jury was not error (see, People v. Barnes, 50 N.Y.2d 375, 429 N.Y.S.2d 178, 406 N.E.2d 1071, supra; People v. Johnson, 134 A.D.2d 617, 521 N.Y.S.2d 512; People v. Ellis, 146 A.D.2d 709, 537 N.Y.S.2d 205).

It is well established that evidence of prior bad acts is inadmissible if its sole purpose is to show a predisposition to commit the crime charged (see, People v. Allweiss, 48 N.Y.2d 40, 421 N.Y.S.2d 341, 396 N.E.2d 735). However, it is equally well established that evidence otherwise relevant to a material fact is not rendered inadmissible merely because it reveals that the defendant has committed another crime. Evidence of prior bad acts may be relevant to motive, intent, the absence of mistake or accident, or identity (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286). Particularly in cases involving child abuse, evidence of prior bad acts is highly relevant to establish a lack of mistake or accident (see, People v. Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358).

When it is determined that...