People v. Sims

• Decision Date: 30 September 1985
• Parties: The PEOPLE, etc., Respondent, v. Elizabeth SIMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 114

494 N.Y.S.2d 114

110 A.D.2d 214

The PEOPLE, etc., Respondent, v. Elizabeth SIMS, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 30, 1985.

George T. Dunn, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Peter A. Weinstein, Brooklyn, of counsel; Ann Bordley, Brooklyn, on brief), for respondent.

Before MOLLEN, P.J., and LAZER, MANGANO and BROWN, JJ.

BROWN, Justice.

The defendant stands convicted of assault in the first degree and endangering the welfare of a child for having intentionally immersed her two-year old daughter in a tub of scalding water, as a result of which the child suffered serious burns of her left hand, legs and buttocks, eight of her toes had to be amputated and she was required to undergo numerous painful skin graft operations. On this appeal, we are asked to determine, inter alia, whether the trial court erred in permitting the People to introduce on their direct case evidence of the defendant's prior conviction for attempted manslaughter in the second degree in connection with the death of her first child, as well as evidence of prior beatings inflicted upon her other children. Under the circumstances of this case, we conclude that this evidence was properly admitted and that defendant's other contentions on this appeal are without merit.

On the morning of August 12, 1982, Mrs. Christine Stevens, defendant's mother-in-law, received a telephone call from defendant informing her that she had found an empty aspirin bottle on the floor and had noticed that the skin on her two-year old daughter Tonya's hand was peeling off. Mrs. Stevens' son, defendant's husband, Charles Sims, was in the United States Army stationed in Germany at the time. Mrs. Stevens advised the defendant to give the child warm milk, put grease on her hand and take her to the hospital. Defendant telephoned Mrs. Stevens again later that morning and told her that she had taken Tonya to Brookdale Hospital where doctors had given the child a tetanus shot and put vaseline on her hand. She stated that pursuant to the doctor's instructions, she had taken the child home.

Between 12:00 and 1:00 that same afternoon, defendant brought Tonya and her other daughter, three-year old Keesha, to Mrs. Stevens' apartment. The visit had previously been arranged in order that defendant, who was pregnant, could attend a prenatal medical appointment at Brookdale Hospital. When the defendant and her children arrived, Mrs. Stevens noticed that skin was hanging from Tonya's left hand and when the child's shoes and socks were removed, she saw that she had no skin on her feet. Defendant assured Mrs. Stevens that she had taken Tonya to the hospital. Later, after the defendant had left for the doctor's appointment, Mrs. Stevens removed Tonya's diaper and discovered that the skin had been burned off the child's buttocks as well. Mrs. Stevens called her family doctor who told her to immediately bring the child to his office. After examining the child, the doctor summoned an ambulance and the child was taken to Brookdale Hospital.

According to Doctor Peter Vaccaro, who examined Tonya in the emergency room at Brookdale Hospital, the child had sustained first, second and third degree burns on her feet, buttocks and left hand. Doctor Frederic Cohen, who performed skin graft surgery on Tonya, testified that she had also received some fourth degree burns. Both doctors agreed that the burns were caused by a liquid heated to a temperature of over 150? F and that burned portions of Tonya's skin were well defined, with no splash burns or other irregular burns. In Doctor Vaccaro's opinion, the clear demarcation between the burned and unburned portions of skin and the location and extent of the burns on Tonya's legs and buttocks indicated that she had not been burned accidentally. Doctor Vaccaro testified that, in his opinion, Tonya did not receive her burns by accidentally stepping into a tub of scalding water because once one of her feet touched the water she would not then have placed her other foot in the water and sat down. Nor did the burns indicate that she accidentally fell into a tub of scalding water for then there would have been splash burns on other parts of her body. Nor was the child seated in an empty tub while someone turned on the hot water because she would not have remained seated while the scalding water reached a depth of four inches about her feet and three inches about her buttocks. In the opinion of both Dr. Vaccaro and Dr. Cohen, the only reasonable explanation for Tonya's burns was that someone had held her in a horizontal position, with one arm supporting her back and one arm under her knees, lowered her into the scalding liquid and held her there for at least 20 to 30 seconds.

Dr. Vaccaro also testified that had Tonya's injuries been left untreated, she would have faced a serious risk of death from infection and shock. Dr. Cohen further testified that as a result of the burns, Tonya, who had already undergone three skin graft operations and had lost eight toes due to gangrene, would be forced to undergo additional operations and would suffer pain for the rest of her life. Photographs which were taken of Tonya on the day she was brought to the emergency room revealed that, in addition to her burns, she had a scratch behind her ear which was less than a week old and a number of healed scars on her face, chin, arm and legs. According to Dr. Vaccaro, the scars on her legs appeared to have been as a result of her having been struck with a belt.

Jane Askel, a pediatric social worker at Brookdale Hospital who had been assigned to Tonya's case, testified that she had spoken with the defendant on the day after the child had been brought to the hospital and that defendant had told her that when she awakened the day before she had heard water running in the bathroom sink. Later that morning, while dressing Tonya, defendant claimed that she noticed some peeling on Tonya's feet but thought it might have been caused by the shoes she was wearing. Ms. Askel stated further that defendant told her that she had taken Tonya to the Bristol Street Clinic that morning for treatment of her peeling feet, and that it was not until they arrived at Mrs. Stevens' apartment that afternoon that she noticed that Tonya's feet and buttocks were peeling badly.

Evidence was introduced which established that, contrary to defendant's statements to Mrs. Stevens and Ms. Askel, Tonya had not been treated at either Brookdale Hospital or at the Bristol Street Clinic on the morning in question. According to the hospital records, Tonya was not admitted to Brookdale Hospital until later that afternoon.

On August 18, 1982, several days after Tonya's admission to Brookdale Hospital, Detective Dennis Mulloy accompanied Mrs. Stevens and Tonya's sister, Keesha, to the emergency room at the hospital. Keesha was examined by Dr. Gregory Menken, who had also examined Tonya at the time of her admission. In the course of his examination of Keesha, Dr. Menken discovered numerous scars on her body. In his opinion, while some of the scars might have resulted from typical childhood accidents, a number of the scars and lesions on Keesha's back, wrists and ankles had been deliberately inflicted.

According to Detective Mulloy, during the course of Dr. Menken's examination of Keesha, defendant arrived at the emergency room and he asked if he could speak to her. He stated that they then stepped into a nearby office, accompanied by another police officer and that before questioning defendant, he advised her of her Miranda rights which she waived. Mulloy testified that defendant then stated that on the morning of August 12, 1982, she had fed and dressed her children before taking them to Mrs. Stevens' house and did not notice anything wrong with Tonya at that time.

After speaking with Detective Mulloy, defendant also spoke briefly with Dr. Menken and, according to his testimony she seemed to be very concerned about the age of the scars found on Keesha's body. She repeatedly inquired as to whether they were recent. She told him that she and her husband used to beat the children and that they had inflicted the old scars but had not done anything recently. According to Dr. Menken, several of the injuries were only a few months old, others had occurred approximately six months earlier, and still others were about one year old. The following day, August 19, 1982, Detective Mulloy arrested defendant.

At the close of the People's case, evidence was introduced indicating that in November of 1979 defendant had pleaded guilty to attempted manslaughter in the second degree in connection with the death of her first child, seven-month old Frances Nicole Quick, and that the cause of the child's death was a subdural hemorrhage and cerebral adema.

Defendant testified in her own behalf. She claimed that when she awoke on the morning of August 12, 1982, the children were laughing and that when she dressed Tonya she did not notice any injuries. She later called her mother-in-law to tell her that she was on her way over with the children. She specifically denied telling Mrs. Stevens either that Tonya's skin was peeling or that she had taken her to Brookdale Hospital. After dropping the children off at Mrs. Stevens' apartment and speaking briefly with everyone in the apartment, defendant stated that she left for her prenatal checkup. Following her appointment, she said that she had called Mrs. Stevens' apartment and was told that Tonya had been brought to the emergency room. When she reached the emergency room, Mrs. Stevens told her that she had noticed that Tonya's skin was peeling when she went to change her diaper. According to defendant, Mrs. Stevens informed her at that time that she had been told by Keesha that while she and Tonya were playing in the bathtub she, Keesha, had turned on the hot water. Defendant...