People v. Hershey

• Citation: 85 A.D.3d 1661,925 N.Y.S.2d 314,2011 N.Y. Slip Op. 05303
• Parties: The PEOPLE of the State of New York, Respondent,v.Barbara J. HERSHEY, Defendant–Appellant.
• Decision Date: 17 June 2011
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1661
925 N.Y.S.2d 314
2011 N.Y. Slip Op. 05303

The PEOPLE of the State of New York, Respondent,
v.
Barbara J. HERSHEY, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 17, 2011.

[925 N.Y.S.2d 315]

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant.R. Michael Tantillo, District Attorney, Canandaigua, for Respondent.PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.MEMORANDUM:

[85 A.D.3d 1661] Defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15[1] ) for recklessly causing the death of her four-month-old step-grandson. Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's [85 A.D.3d 1662] contention that the verdict is against the weight of the evidence. It is undisputed that the victim sustained subdural hematomas, retinal hemorrhaging and cerebral edema, commonly referred to as the triad symptoms indicative of Shaken Baby Syndrome (SBS). The People's expert witnesses testified that, in the absence of evidence of external trauma, those symptoms in a baby can be caused only by shaking the baby with great force. The People's experts further testified that there can be no “lucid interval” between the shaking and the baby's death or disability. Thus, because the victim lost consciousness while in the exclusive care of defendant, it was reasonable for the jury to conclude that defendant shook the victim, causing his death. Although defendant's experts challenged the

[925 N.Y.S.2d 316]

validity of SBS, it cannot be said on this record that the jury failed to give the evidence the weight it should be accorded ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “ ‘Where, as here, there was conflicting expert evidence concerning criminal responsibility, the jury was free to accept or reject in whole or in part the opinion of any expert’ ” ( People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403), “at least in the absence of a serious flaw in the expert's testimony” ( People v. Irizarry, 238 A.D.2d 940, 941, 661 N.Y.S.2d 147, lv. denied 90 N.Y.2d 894, 662 N.Y.S.2d 437, 685 N.E.2d 218 [internal quotation marks omitted] ).

We further conclude that County...