People v. Henson

• Citation: 304 N.E.2d 358,33 N.Y.2d 63,349 N.Y.S.2d 657
• Parties: , 304 N.E.2d 358 The PEOPLE of the State of New York, Respondent, v. Charles Michael HENSON, Appellant. The PEOPLE of the State of New York, Respondent, v. Marlene Ethel HENSON, Appellant.
• Decision Date: 18 October 1973
• Court: New York Court of Appeals

Page 657

349 N.Y.S.2d 657

33 N.Y.2d 63, 304 N.E.2d 358

The PEOPLE of the State of New York, Respondent, v. Charles Michael HENSON, Appellant.

The PEOPLE of the State of New York, Respondent, v. Marlene Ethel HENSON, Appellant.

Court of Appeals of New York.

Oct. 18, 1973.

Paul R. Shanahan, Syracuse, and George S. Howlett, North Syracuse, for appellants.

Leo F. Hayes, Dist. Atty. (John A. Cirando and Patrick Connelly, Syracuse, of counsel), for respondent.

FULD, Chief Judge.

The defendant-appellants, Charles and Marlene Henson, stand convicted, among other crimes, of criminally negligent homicide (Penal Law, § 125.10, Consol.Laws, c. 40) in connection with the death in 1970 of their four-year-old son Kip. They seek a reversal on essentially two grounds: first, that the evidence fails to establish their guilt beyond a reasonable doubt and, second, that the introduction into evidence of matters concerning the defendants' alleged prior conduct toward Kip constituted reversible error.

Kip's brief and unfortunate life ended sometime before noon on Sunday, August 23, 1973. Between 11:00 and 11:30 A.M. on that day, Michael Corbett, a member of the North Syracuse Volunteer Fire Department, responded to an emergency call that a 'boy had stopped breathing' at the Henson residence on Catherine Street. Upon arriving there, Corbett went into a bedroom where he found Kip lying in his bed, next too his father, who, ostensibly, was attempting mouth-to-mouth resuscitation. For about 10 or 15 minutes Corbett and his partner attempted their own resuscitative efforts--using a resuscitator to apply oxygen into the child's lungs and an aspirator to attempt to remove the 'thick mucus' which had accumulated in his mouth and throat--although no 'vital signs of life' were detected; he appeared, Corbett testified, to be dead. In any event, rushed by ambulance to St. Joseph Hospital in Syracuse, he ws pronounced dead on arrival.

The doctor at the hospital observed that the little boy 'looked quite sallow,' that 'his body was covered with many black and blue marks, his face was dirty' and that the bruises were 'over all extremities several on the leg, several on the arms, abdomen, chest (and) genitals.' A later, detailed autopsy report confirmed these observations and, significantly, it was also determined that Kip had been suffering from 'acute bilateral bronchial pneumonia' and that that sickness was the immediate cause of his death. On being informed that the child was indeed dead, Marlene exclaimed, "Oh God, what will they do to us now."

Each of the defendants, separately taken into custody for questioning, made statements to the police. Initially, they disclosed that both parents were aware that the child was sick some days before his death. Actually, Marlene admitted that she was aware that he had been suffering from 'congestion in his chest' since August 20, a full three days before he died. Despite their awareness of his condition, on August 22, they acknowledged that they went to a bar and did not return until about 3:00 A.M. of the 23rd; that they each had had about 'five or six' beers; that in preparation for their evening out they had hired a 19-year-old babysitter, Dolores Klochaney, to look after their children and had actually tied Kip in his bed 'by laying him on his back * * * with his hands at his sides and putting a rope around his waist and arms.' ²

Their statements further revealed that Mrs. Henson, after taking the babysitter home, did not return to her house until 5:00 A.M.; that, while she was gone, Mr. Henson just 'stayed up,' listening to the radio, although he was aware that Kip was breathing 'the same, real hard'; that at about 9:30 A.M., Kip tried to say something to his mother but was 'gurgling' so she could not understand him; that shortly thereafter his eyes began 'rolling back in his head' and his right cheek and lips started 'turning blue' and that a white foam-like liquid came from his nose. It was only at this point that the Hensons took any steps to obtain medical attention: Marlene picked up the telephone and asked the operator 'to send help with some oxygen'. As already indicated, when the volunteer firemen, who responded, arrived a few minutes later, Kip appeared 'dead'.

With respect to the bruises which literally covered the youngster's body, Mrs. Henson told the police that the infant had 'been falling out of his bed' for several days preceding his death. ³ She further stated that she had 'a discipline problem' with Kip and that because of this she occasionally 'slapped' him across the face, 'struck' him with her husband's belt and 'spanked' him with a 'pingpong' paddle; that, when the paddle 'disappeared,' she used a 'wooden cooking spoon' and, more recently, her hand.

On the basis of these statements to the police, the Hensons were arrested on the next day and, following further investigation into the matter, were charged with criminal responsibility for their child's death in a four-court indictment, manslaughter in the second degree (Penal Law, § 125.15), criminally negligent homicide (§ 125.10), endangering the welfare of a child (§ 260.10, subd. 1) and third degree assault (§ 120.00). ⁴ The jury found both defendants guilty on those counts charging criminally negligent homicide and endangering the welfare of the child and, in addition, found Mrs. Henson guilty of assault. She was sentenced to an indeterminate term in prison of up to four years, and her husband was placed on probation for five years. The Appellate Division unanimously affirmed the convictions (41 A.D.2d 701, 342 N.Y.S.2d 1007, 1008), and the appeal is here by leave of a Judge of this court.

Evidence of Guilt

Contrary to the defendants' contention that there was insufficient proof of criminally negligent homicide to justify its submission to the jury, the evidence of guilt is overwhelming.

Section 125.10 of the Penal Law recites that one 'is guilty of (the crime of) criminally negligent homicide when, with criminal negligence, he causes the death of another person.' Subdivision 4 of section 15.05 of the Penal Law, which defines 'Criminal negligence', provides that

'A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.'

Although the criminally negligent offender, the court recently pointed out in People v. Haney, 30 N.Y.2d 328, 333, 333 N.Y.S.2d 403, 407, 284 N.E.2d 564, 567, is guilty of a 'culpable failure to perceive the (proscribed) risk,' the reckless offender--subject to prosecution for the more serious crime of second degree manslaughter (Penal Law, § 125.15)--is guilty of 'consciously disregard(ing) the risk.' In the course of its opinion, the court went on to declare (p. 334, 333 N.Y.S.2d p. 408, 284 N.E.2d p. 567):

'Criminally negligent homicide, in essence, involves the failure to perceive the risk in a situation where the offender has a legal duty of awareness. It, thus, serves to provide an offense applicable to conduct which is obviously socially undesirable. '(It proscribes) conduct which is inadvertent as to risk only because the actor is insensitive to the interests and claims of other persons in society.' (Model Penal Code, Tent. Draft No. 9, Supra, at p. 53.) The Legislature, in recognizing such conduct as criminal, endeavored to stimulate people towards awareness of the potential consequences of their conduct and influence them to avoid creating undesirable risks. (Authorities cited.)'

There is no doubt that, in the case before us, the record evidence warranted the verdict that the defendants' failure to provide prompt medical care for their son reflected 'a culpable failure to perceive a substantial and unjustifiable risk' of death, constituting 'a gross deviation from the standard of care that a reasonable (parent) would observe'. In short, there was more than ample proof that Kip was obviously, even to the untrained eye, a very sick child in the days before his death. Indeed, in addition to the defendants' own statements to the police, the testimony of Dolores Klochaney, the babysitter, is shockingly eloquent not alone of the little boy's grave plight but also of his parents' gross insensitivity to his welfare. Thus, on arriving at the Henson home at about 9:30 or 10:00 o'clock on the evening of August 22, she was told by the child's mother that he had had a cold that week, that he might be 'pesty' and that she was 'not to bother with him': in fact, the girl testified, 'she told me to ignore him if he called.' Moreover, she added, the Hensons left without telling her where they were going and without leaving any telephone number at which they could be reached. Some time after their departure, Kip's condition worsened significantly: he began 'breathing very hard, real hard' and a 'red' substance began drooling out of his mouth. Frightened by those developments, the girl called her parents for help but, because she was so excited, hung up on them before they answered and immediately commenced applying 'hot compresses' to Kip and then anxiously waited in the living room for the Hensons to return.

When they did finally arrive, Dolores, who noticed that they had been drinking, emphatically told Mrs. Henson that Kip 'seemed awful sick' and went on to describe how the child had been acting. The mother, however, paid little attention and, although, on the way home, Dolores continued to try to impress upon the older woman that Kip seemed to be extremely ill, she 'tried to change the subject' and 'started to talk about one of the other kids'.

Despite the babysitter's frightening description of Kip's...