People v. Moore

• Decision Date: 05 December 2013
• Citation: 112 A.D.3d 981,2013 N.Y. Slip Op. 08141,976 N.Y.S.2d 587
• Parties: The PEOPLE of the State of New York, Respondent, v. Dejon MOORE, Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 981
976 N.Y.S.2d 587
2013 N.Y. Slip Op. 08141

The PEOPLE of the State of New York, Respondent,
v.
Dejon MOORE, Appellant.

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

Dec. 5, 2013.

[976 N.Y.S.2d 588]

Catherine A. Barber, Albany, for appellant.

P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, GARRY and EGAN JR., JJ.

ROSE, J.P.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 25, 2009, upon a verdict convicting defendant of the crime of reckless assault of a child.

Two months after defendant began dating the codefendant, Kansinya Lewis, her 11–month–old daughter was found to be unresponsive, clenching her fists in pain, bruised, unable to hold her head up and with her eyes rolled back in her head. The child was transported to the hospital where emergency room staff determined that she had suffered a traumatic brain injury

[976 N.Y.S.2d 589]

. When later questioned by police, defendant admitted that he shook the baby earlier that day because she was crying, he was angry that Lewis was sleeping and not attending to the child, and he could not take it anymore. Defendant was thereafter charged with assault in the first degree and reckless assault of a child. After a joint jury trial, he was found guilty of the reckless assault charge. He was sentenced to a prison term of seven years with three years of postrelease supervision, and he now appeals.¹

We reject defendant's contention that his repeated motions for severance should have been granted. Lewis' defense, that she did not know what caused the child's injuries, was not “in irreconcilable conflict” with defendant's claims that his statements were involuntary and that the proof was insufficient to establish his guilt (People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]; see People v. Smith, 89 A.D.3d 1126, 1131, 933 N.Y.S.2d 413 [2011], lv. denied18 N.Y.3d 962, 944 N.Y.S.2d 491, 967 N.E.2d 716 [2012]; People v. Cordato, 85 A.D.3d 1304, 1308, 924 N.Y.S.2d 649 [2011], lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). Nor did Lewis implicate defendant as the perpetrator or offer any evidence that she had witnessed him express anger toward her children on any occasion.

We find no basis for defendant's claim that his statement to the police was the product of duress ( see People v. Snow, 79 A.D.3d 1252, 1255, 912 N.Y.S.2d 334 [2010], lv. denied16 N.Y.3d 800, 919 N.Y.S.2d 516, 944 N.E.2d 1156 [2011]; People v. Manos, 73 A.D.3d 1333, 1339, 901 N.Y.S.2d 408 [2010], lv. denied15 N.Y.3d 807, 908 N.Y.S.2d 166, 934 N.E.2d 900 [2010] ). His additional arguments that his statement should have been suppressed because it was not electronically recorded and that the jury should have been given an adverse inference charge based on the lack of a video or audio recording are not preserved for our review ( seeCPL 470.05[2]; People v. Wolfe, 103 A.D.3d 1031, 1034–1035, 962 N.Y.S.2d 403 [2013], lv. denied21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013]; People v. Kindred, 100 A.D.3d 1038, 1040, 952 N.Y.S.2d 832 [2012], lv. denied21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [2013] ). In any event, there is no due process requirement that the statement be electronically recorded ( see People v. Beckingham, 57 A.D.3d 1098, 1099–1100, 869 N.Y.S.2d 649 [2008], lv. denied13 N.Y.3d 742, 886 N.Y.S.2d 95, 914 N.E.2d 1013 [2009]; People v. Nelson, 52 A.D.3d 534, 535, 860 N.Y.S.2d 546 [2008], lv. denied11 N.Y.3d 739, 864 N.Y.S.2d 398, 894 N.E.2d 662 [2008] ), nor is there any basis for an adverse inference charge to be given ( see People v. Rivera, 105 A.D.3d 1343, 1346, 964 N.Y.S.2d 359 [2013], lv. denied21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 [2013]; People v. McMillon, 77 A.D.3d 1375, 1375, 909 N.Y.S.2d 267 [2010], lv. denied16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011] ).

Defendant's contention that his conviction is not supported by legally sufficient evidence is also without merit. His statement that he shook the child so hard that she “lost her air” on the morning the injuries were discovered puts his actions within the time frame when the medical experts testified that the injuries were inflicted. Defendant also admitted to a child protective services worker that he shook

[976 N.Y.S.2d 590]

the child, and there was testimony from witnesses that defendant had previously yelled at the child for crying, and would tell the child to “shut the f* * * up.” Evidence that the severity of the child's injuries indicated that they were not caused by shaking alone does not require that defendant's confession be disregarded, but merely provides a basis to infer that defendant did more to the child than he...