People v. Schumaker

• Decision Date: 11 February 2016
• Citation: 136 A.D.3d 1369,25 N.Y.S.3d 487
• Parties: The PEOPLE of the State of New York, Respondent, v. Dylan SCHUMAKER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1369

25 N.Y.S.3d 487

The PEOPLE of the State of New York, Respondent,

v.Dylan SCHUMAKER, Defendant–Appellant.

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

Feb. 11, 2016.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.

Dylan Schumaker, Defendant–Appellant Pro Se.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DeJOSEPH, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), arising from the death of his girlfriend's 23–month–old son. Defendant contends, inter alia, that the evidence is not legally sufficient to support the conviction and that the verdict is against the weight of the evidence. Although he concedes that his actions caused the victim's death, defendant challenges the sufficiency and weight of the evidence with respect to whether he intentionally caused the victim's death. We reject those challenges.

It is well settled that "[t]he standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ " (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 ). Consequently, we must "determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Here, the testimony of the Medical Examiner established that the victim sustained ruptured blood vessels in his left ear and near his right eye, hemorrhages in his retina and perioptic nerve, and subdural and subarachnoid hemorrhaging. The Medical Examiner testified that the victim also had numerous contusions and abrasions on multiple areas of his torso, buttocks, scalp, face and neck. The Medical Examiner opined that the cause of the victim's death was "diffuse axonal injury," which resulted from shearing forces within the child's brain caused by his head whipping violently back and forth, and that such a result is consistent with the blows that defendant admitted inflicting upon the child. The Medical Examiner testified that the child's injuries were not consistent with a slip and fall as defendant testified occurred, but instead were the result of "multiple impacts." Other evidence, including text messages that defendant sent and his trial testimony, established that the child was initially injured before 5:00 p.m., and that defendant inflicted further injuries upon him over a period of several hours during the evening. Defendant admitted hitting the victim several times, including backhanded smacks to his face, and slamming his head on the ground while changing a diaper, all of which culminated in defendant placing the victim on a bed with a pillow over him and repeatedly punching him in the head. The Medical Examiner testified that the "diffuse axonal injury" caused the victim's death, and that the victim had "no prolonged survival [after he sustained that injury, but rather he] died soon thereafter, shortly thereafter."

The evidence also established that defendant frequently stopped attacking the victim while he sent an ongoing series of text messages. At approximately 5:00 p.m., he told the victim's mother that the victim had fallen, but for the next several hours he texted with her on that and other topics, flirted with a different young woman, and attempted to sell synthetic marihuana to a third person. Thus, the evidence is sufficient to establish that defendant spent the evening intermittently attacking the 23–month–old child while engaging in commercial and social activities, and then placed the victim on a bed and punched him repeatedly in the head through a pillow. "A jury is entitled to infer that a defendant intended the natural and probable consequences of his acts" (People v. Bueno, 18 N.Y.3d 160, 169, 936 N.Y.S.2d 636, 960 N.E.2d 405 ; see People v. Hayes, 163 A.D.2d 165, 166, 558 N.Y.S.2d 532, affd. 78 N.Y.2d 876, 573 N.Y.S.2d 67, 577 N.E.2d 58 ; People v. Watson, 269 A.D.2d 755, 756, 704 N.Y.S.2d 396, lv. denied 95 N.Y.2d 806, 711 N.Y.S.2d 174, 733 N.E.2d 246 ). We conclude that the evidence is legally sufficient to establish that defendant intended to cause the death of the victim (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Furthermore, it is also well settled that, "in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt" (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Here, viewing the evidence in light of the elements of the crime of murder as charged to the jury (see id. ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We note that, "[a]lthough defendant testified that he did not intend to kill [the] victim, the [jury] was free to reject that self-serving testimony" (People v. Simcoe, 75 A.D.3d 1107, 1109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 ).

Defendant further contends that Supreme Court erred in denying his Batson objection to the prosecutor's use of peremptory challenges to exclude two African–American prospective jurors. Defendant failed to preserve for our review that part of his contention concerning the court's procedure for determining his Batson objection (see People v. Collins, 63 A.D.3d 1609, 1610, 880 N.Y.S.2d 828, lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 ; People v. Parker, 304 A.D.2d 146, 156, 755 N.Y.S.2d 521, lv. denied 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488 ). We decline to exercise our power to review that part of defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We reject those parts of defendant's Batson contention that are preserved for our review. We conclude that the court properly determined that the prosecutor's explanations for exercising peremptory challenges with respect to the two prospective jurors were race-neutral and not pretextual when it rejected defendant's Batson objections concerning those two prospective jurors (see generally People v. Smocum, 99 N.Y.2d 418, 422, 757 N.Y.S.2d 239, 786 N.E.2d 1275 ). The prosecutor challenged one of the prospective jurors based on her memberships in religious and human rights organizations that the prosecutor felt made her more sympathetic to defendant (see People v. Page, 105 A.D.3d 1380, 1381, 964 N.Y.S.2d 339, lv. denied 23 N.Y.3d 1023, 992 N.Y.S.2d 806 ; People v. Wilson, 43 A.D.3d 1409, 1411, 843 N.Y.S.2d 899, lv. denied 9 N.Y.3d 994, 848 N.Y.S.2d 611, 878 N.E.2d 1027 ), and she challenged the other on the ground that the prospective juror's lack of life experiences and decision-making responsibilities made her a less-qualified candidate for jury service (see People v. Hinds, 270 A.D.2d 891, 892, 705 N.Y.S.2d 463, lv. denied 95 N.Y.2d 964, 722 N.Y.S.2d 482, 745 N.E.2d 402 ). Finally, the prosecutor established that she struck other prospective jurors who were not members of a suspect class for those same reasons, and the court therefore properly concluded that the prosecutor's explanations were not pretextual (see People v. Simmons, 79 N.Y.2d 1013, 1015, 584 N.Y.S.2d 423, 594 N.E.2d 917 ; cf. People v. Mallory, 121 A.D.3d 1566, 1568, 993 N.Y.S.2d 609 ; see generally People v. Lawrence, 23 A.D.3d 1039, 1039, 803 N.Y.S.2d 460, lv. denied 6 N.Y.3d 835, 814 N.Y.S.2d 83, 847 N.E.2d 380 ).

We reject defendant's further contention that he was denied effective assistance of counsel. Defendant's contention that he was deprived of effective assistance of counsel by his attorney's failure to pursue a defense of extreme emotional disturbance is without merit. That defense requires that a defendant establish that he "suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control" (People v. Roche, 98 N.Y.2d 70, 75, 745 N.Y.S.2d 775, 772 N.E.2d 1133 ; see People v. Wall, 48 A.D.3d 1107, 1107, 850 N.Y.S.2d 787, lv. denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 ). Here, "[w]e conclude that proof of the objective element [of the defense] is lacking ..., inasmuch as defendant's behavior immediately before and after the killing was inconsistent with the loss of control associated with the affirmative defense" (People v. Mohamud, 115 A.D.3d 1227, 1228, 982 N.Y.S.2d 267, lv. denied 23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 [internal quotation marks omitted]; see People v. Jarvis, 60 A.D.3d 1478, 1479, 876 N.Y.S.2d 592, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 ). It is well settled that "[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' " (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ). Furthermore, in order "[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's allegedly deficient conduct (...