People v. Lewie
| Decision Date | 09 June 2011 |
| Citation | 2011 N.Y. Slip Op. 04766,929 N.Y.S.2d 522,953 N.E.2d 760,17 N.Y.3d 348 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Alicia LEWIE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Matthew C. Hug, Troy, for appellant.Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.Derek Champagne, District Attorney, Albany (Morrie I. Kleinbart of counsel), for District Attorneys Association of the State of New York, amicus curiae.
A jury convicted defendant of second degree manslaughter and first degree reckless endangerment for her role in the events leading to the death of her son. In so doing, the jury found that defendant acted both recklessly and with depraved indifference to human life. We hold that the record supports the jury's finding as to the first of these mental states, but not the second. We therefore uphold the conviction for manslaughter and vacate the conviction for reckless endangerment.
On November 13, 2007, defendant and the man she lived with, Michael Flint, brought her eight-month-old son, Colbi Bullock, to a hospital emergency room. The child was not breathing and had no pulse. Attempts to resuscitate him did not succeed, and he was pronounced dead the following day.
At the time of his death, Colbi had injuries consistent with very severe abuse. There were many bruises on his face—around his cheek, his chin, both eyes and one ear—and there were also bruises elsewhere on his head, and on his neck, chest and abdomen. There were patterns of bruises and abrasions on his arms consistent with three human bite marks, two on the right arm and one on the left. The injuries on his neck were consistent with choking. His ribs had been broken at least a month previously; this injury was consistent with squeezing, or grabbing and shaking. It also appeared that the ribs had been reinjured more recently. A bone in the forearm had been recently broken, close to a bite mark. A doctor who conducted an autopsy found that injury to be “consistent with someone biting and snapping the arm at the same time.” He also found evidence of a brain injury, in the form of hemorrhages less than four days old. In the doctor's opinion, the brain injury was the cause of death.
It is not disputed that Colbi's injuries were inflicted by Michael Flint. Flint pleaded guilty to two counts of depraved indifference murder, and related lesser charges. Defendant was prosecuted on two counts of second degree manslaughter based on two different theories: that, in the last two or three days of Colbi's life, she knew he had life-threatening injuries and failed to seek medical help; and that, in the last 45 days of his life, she left him in Flint's care, knowing that to do so was to put the child's life in danger. She was also charged with first degree reckless endangerment and with endangering the welfare of a child.
Defendant was convicted on all four counts. The Appellate Division reversed as to the first manslaughter count, finding that the evidence did not establish defendant's knowledge that the injuries the child had received were life-threatening, and otherwise affirmed ( People v. Lewie, 67 A.D.3d 1056, 889 N.Y.S.2d 265 [3d Dept.2009] ). A Judge of this Court granted defendant leave to appeal (14 N.Y.3d 889, 903 N.Y.S.2d 778, 929 N.E.2d 1013 [2010] ). We now affirm as to the manslaughter and endangering the welfare of a child counts, but reverse as to reckless endangerment.
The People have not challenged the Appellate Division's holding that the evidence was insufficient on the first of the two manslaughter counts, and defendant does not dispute the sufficiency of the evidence that she was guilty of endangering the welfare of a child. She does challenge the sufficiency of the evidence supporting her remaining manslaughter conviction and her conviction for reckless endangerment. As to both counts, the critical question is what the evidence shows as to defendant's state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him. We will summarize the evidence on that issue, resolving any conflicts, as the jury presumably did, in the People's favor.
Defendant and Colbi began living with Flint when Colbi was about three months old. Defendant worked full time; she hired a babysitter, but Flint was often alone with Colbi. A few days before Colbi's death, defendant dismissed the babysitter and agreed with Flint that Flint would care for the child while defendant worked.
Seven friends and acquaintances of defendant testified to contacts with defendant, Flint and Colbi during the time the three of them lived together. Five of them said that they saw bruises on Colbi, and six of them said that defendant expressed, in one way or another, knowledge, belief or fear that Flint was abusing the child. One said that defendant told her “how she felt uncomfortable leaving the baby home with Michael, that she was scared, she never knew what she was going to go home to.” The same witness said defendant “told me that Michael had shaken the baby ... shaken and bit him.” Another witness recounted a conversation between defendant and Flint, as defendant described it to the witness: “she had told him he had to be more careful with Colbi ... and if he happened to get angry or upset, to shake the teddy bear instead of Colbi.” (In a statement to police after Colbi's death, defendant admitted telling Flint something quite similar.) A third witness said that Flint had shown the witness some bruises on Colbi's head and that, when defendant learned of the conversation, she
Three witnesses said they had told defendant to call the police, leave the apartment or both. A fourth told her that the idea of Flint as babysitter “scared me and made me quite nervous for Colbi,” and a fifth, when defendant told him that Flint would be babysitting, observed: “You're nuts.”
There was other evidence that defendant knew Flint could be violent and cruel. Three witnesses testified that defendant told them Flint had abused her physically: one said that, according to defendant, Flint had shoved, hit and bitten her; another that defendant had “bruises ... that she said [were] from Michael”; and a third that she had “bruises and a burn” that she said “were from Mike.” Two witnesses testified that defendant knew Flint had been charged with cruelty to a dog, and one said that she had “started to believe” he was guilty of that crime. The same witness testified that, according to defendant, Flint had once kicked a kitten against a wall; defendant later found the kitten dead; and “she believed Michael had killed the cat.”
The events of the last days of Colbi's life, while directly relevant to the dismissed manslaughter count (based on failure to seek medical care), also have some bearing on the counts before us, because they show defendant's persistence in leaving Colbi with a dangerous man. Flint called defendant at work on November 12 to tell her that “the baby had fallen in the shower.” Defendant reported this to a coworker who was a certified nursing assistant, and received advice about what symptoms to look for. Arriving home, defendant found, according to her statement to the police, that Colbi “had bruising on the side of his face, his eyes were black and blue, he had a fat lip, and he had redness on his torso and his neck area.” Flint told her the baby had vomited—one of the symptoms the coworker had identified as calling for medical attention.
Defendant not only sought no care for the baby; there was evidence that she tried to conceal the injuries. A witness who encountered Colbi, Flint and defendant the following morning, before defendant went to work, testified that her attention was drawn by Colbi's “persistent, weak ... very strange cry.” Colbi was dressed in a snowsuit, with a hood covering his head (though defendant herself wore a T-shirt). When the witness slid the hood back, she saw that Colbi had two black eyes, and asked defendant: “Did you take him to the hospital?” Defendant replied, falsely, that she had been at the hospital all night, and that the doctor had told her that the baby was fine. Later that day, defendant went to work as usual, leaving Colbi with Flint for the last time.
We must decide whether this evidence shows the degree of culpability necessary to support defendant's manslaughter and reckless endangerment convictions. We consider the two separately.
Defendant was convicted of manslaughter in the second degree, a class C felony, under Penal Law § 125.15(1), applicable to someone who “recklessly causes the death of another person.” “Recklessly” is defined in Penal Law § 15.05(3), which says, in relevant part:
“A person acts recklessly with respect to a result ... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur ... The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”
The question here is whether the jury could find, beyond a reasonable doubt, that defendant was aware of, and consciously disregarded, a substantial and unjustifiable risk that leaving Colbi in Flint's care would lead to Colbi's death. It is not enough that defendant should have known the child's life was in danger, or that she did know the child could be seriously hurt. She must have actually known of, and consciously disregarded, a risk to the child's life ( see People v. Wong, 81 N.Y.2d 600, 608, 601 N.Y.S.2d 440, 619 N.E.2d 377 [1993] ). On the other hand, it is not necessary to a manslaughter conviction that defendant knew the child would die, or believed it likely. Even a small risk that a baby will die...
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