People v. Heslop

• Decision Date: 20 December 2007
• Docket Number: 16489.
• Citation: 849 N.Y.S.2d 301,48 A.D.3d 190,2007 NY Slip Op 09980
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BOYD B. HESLOP SR., Appellant.
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 190

849 N.Y.S.2d 301

2007 NY Slip Op 09980

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BOYD B. HESLOP SR., Appellant.

16489.

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

December 20, 2007.

Mitch S. Kessler, Cohoes, for appellant.

Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), for respondent.

OPINION OF THE COURT

SPAIN, J.

Defendant was charged with depraved indifference murder (see Penal Law § 125.25 [4]), stemming from the death of his four-month-old son. Trial testimony established that defendant was awakened at approximately 5:30 A.M. by his son's cries. Unable to quiet the infant, he twice punched the baby in the head. After the second blow, he realized that the child was injured, later admitting that the skull moved and was "not solid." When his wife awoke to the baby's cry, defendant told her that he dropped the baby on his head but that the baby was now fine and that she should go back to sleep. She observed defendant pat the baby and put him back into his bassinet. When she awoke three hours later, defendant was holding a limp baby. She asked defendant if the baby was breathing and he responded, "[W]hy wouldn't the baby be breathing?" Realizing that the child was unconscious, she called 911. The baby was hospitalized and later died due to multiple skull fractures and brain injuries caused by blunt force trauma. While defendant initially claimed, when interviewed at the hospital, that he had accidently dropped the child on the bathroom floor, he eventually admitted that he had struck the child.

At trial, the physician who performed the postmortem examination testified that the baby's skull had sustained bilateral fractures and severe hemorrhaging. He explained that a blow, such as those inflicted by defendant, would cause an infant to initially cry but then quickly lose consciousness. He further testified that if left unattended for over an hour, as was done here, the baby's brain would swell, causing respiratory failure and a comatose state.

Defendant offered a psychiatric defense based upon the testimony of a psychologist who opined that, due to his impulse control disorder and various other psychiatric conditions, defendant was unable to comprehend the serious nature of his conduct. He further stated that a frontal lobe syndrome suffered by defendant, combined with sleep deprivation and depression, could have rendered him unaware of the risk that his action posed to the baby. In response, the People offered contrary psychiatric testimony supporting defendant's ability to understand or appreciate the gravity of his actions. Further evidence tending to negate defendant's psychiatric defense consisted of testimony concerning a false statement that he made on an application for social services benefits as well as an earlier assault that he inflicted upon his wife which resulted in criminal charges and an order that he attend anger management classes. County Court refused to permit testimony from defendant's mother and sister concerning a head injury that he sustained during childhood which allegedly caused him to act irrationally. Convicted as charged by a jury and sentenced to a prison term of 25 years to life, defendant appeals.

We affirm. Based upon ample evidence to support the jury's verdict, we reject defendant's contention that the depraved indifference murder verdict was not supported by legally sufficient evidence (see People v Maddox, 31 AD3d 970, 971-972 [2006], lv denied 7 NY3d 868 [2006]; see also People v Suarez, 6 NY3d 202, 212-213 [2005]; People v Mills, 1 NY3d 269, 275-276 [2003]). Compelling evidence demonstrated that defendant knew—after he hit the baby—that he had been severely injured, but nevertheless induced his wife to go back to sleep and left the child to die. Such circumstances clearly present a situation upon which a jury could find that defendant acted with the requisite depravity. "Given the level of force required to inflict these fatal injuries and defendant's attempt to cover up his conduct, the jury reasonably could have concluded that defendant was aware of an obvious risk of death" to the baby and that his actions "presented a grave risk of death and evinced a depraved indifference to the infant's plight" (People v Maddox, 31 AD3d at 972 [citations omitted]; see People v Strawbridge, 299 AD2d 584, 593 [2002], lvs denied 99 NY2d 632 [2003], 100 NY2d 599 [2003]). Nor was defendant's conviction against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]). After weighing the evidence presented, including the conflicting expert opinions, we find ample support for the jury's decision to discredit that evidence which supported defendant's psychiatric defense (see People v Dickerson, 42 AD3d 228, 233-235 [2007], lv denied 9 NY3d 960 [2007]; People v Smith, 41 AD3d 964, 966 [2007]; People v Maddox, 31 AD3d at 972-973; People v Strawbridge, 299 AD2d at 593-594).

We turn next to defendant's assertion that County Court erred in refusing defendant's request to charge manslaughter in the second degree (see Penal Law § 125.15) as a lesser included offense of depraved indifference murder as defined by Penal Law § 125.25 (4). A defendant is entitled to a lesser included offense charge where he or she can "establish that it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct" and that there is "a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater" (People v Van Norstrand, 85 NY2d 131, 135 [1995]; see CPL 1.20 [37]; 300.50 [1]; People v Caruso, 6 AD3d 980, 983 [2004], lv denied 3 NY3d 704 [2004]).

Pursuant to Penal Law § 125.25 (4), a person is guilty of murder in the second degree when that person, 18 years old or more, "[u]nder circumstances evincing a depraved indifference to human life, ... recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person." Under subdivision (2) of this statute, a person commits murder in the second degree when, "[u]nder circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). It is undisputed that manslaughter in the second degree is a lesser included offense of depraved indifference murder under Penal Law § 125.25 (2) (see e.g. People v Atkinson, 7 NY3d 765, 766-767 [2006]; People v Smothers, 41 AD3d 1271, 1272 [2007], lv denied 9 NY3d 964 [2007]; People v DeCapua, 37 AD3d 1189, 1190 [2007], lv denied 8 NY3d 983 [2007]; People v McPherson, 35 AD3d 765, 766 [2006]; People v McMillon, 31 AD3d 136, 139-140 [2006], lv denied 7 NY3d 815 [2006]). Although other decisions reflect that manslaughter in the second degree has been charged as a lesser included offense of depraved indifference murder under Penal Law § 125.25 (4) (see People v Dickerson, 42 AD3d at 233-234; People v Baker, 4 AD3d 606, 612 [2004], lv denied 2 NY3d 795 [2004]; People v Moore, 216 AD2d 902, 902-903 [1995], lv denied 87 NY2d 905 [1995]), no challenge to such charge was raised on those appeals. Notably, the Fourth Department has held that manslaughter in the second degree is not a lesser included offense of Penal Law § 125.25 (4) (see People v Robinson, 278 AD2d 798 [2000], lv denied 96 NY2d 762 [2001]), but we have not been called upon to consider the issue until now.

Thus, we must determine whether it is impossible to commit depraved indifference murder as defined by Penal Law § 125.25 (4), without—at the same time—committing manslaughter in the second degree (see People v Van Norstrand, 85 NY2d at 135; People v Morales, 36 AD3d 957, 958 [2007], lv denied 8 NY3d 988 [2007]; People v Britt, 283 AD2d 778, 780 [2001], lv denied 96 NY2d 916 [2001]). The distinction between Penal Law § 125.25 (2) and Penal Law § 125.25 (4) is that subdivision (4) sets forth "a reduced intent requirement" to specifically address the crime of child abuse (Assembly Sponsor's Mem in Support, Bill Jacket, L 1990, ch 477, at 10). Representing "[a] lesser mens rea requirement coupled with proof of reckless conduct," subdivision (4) holds "child abusers responsible for the consequential results of the acts which they should have known could occur by virtue of the child's naturally vulnerable condition" (Assembly Sponsor's Mem in Support, Bill Jacket, L 1990, ch 477, at 10). Thus, in contrast to the required finding under subdivision (2), that a defendant's reckless conduct "creates a grave risk of death" and causes the death of such person, a conviction may also be sustained under subdivision (4) where the reckless conduct "creates a grave risk of serious physical injury" to a young child and causes the child's death.

"Serious physical injury" is "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (Penal Law § 10.00 [10] [emphasis added]). Thus, the risk guarded against under Penal Law § 125.25 (4) is not limited to risk of death. Manslaughter in the second degree, on the other hand, requires a person to "recklessly cause[] the death of another person" (Penal Law § 125.15 [1]) "`by creating and consciously disregarding a substantial and unjustifiable risk of death'" (People v Lutes, 285 AD2d 739, 740 [2001], lv denied 97 NY2d 642 [2001] [emphasis added], quoting People v Hart, 266 AD2d 698, 700 [1999], lv denied 94 NY2d 880 [2000]; see Penal Law § 15.05 [3]).

The dispositive inquiry, therefore, is whether one can engage in conduct that creates and disregards a grave risk of serious physical injury,...