People v. Skinner

• Decision Date: 17 October 2002
• Citation: 747 N.Y.S.2d 857,298 A.D.2d 625
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JEFFREY SKINNER, Appellant.
• Court: New York Supreme Court — Appellate Division

298 A.D.2d 625

747 N.Y.S.2d 857

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.JEFFREY SKINNER, Appellant.

Carpinello, J.

Decided October 17, 2002.

Cardona, P.J., Mercure, Peters and Kane, JJ., concur.

Carpinello, J.

Defendant was indicted on multiple charges ranging from murder in the second degree to endangering the welfare of child as the result of the death of a 3½-month-old infant who was in his care when she received traumatic injuries to her head. After a mistrial resulting from a jury's inability to reach a verdict, defendant was retried and found guilty of manslaughter in the second degree. The People's case was based primarily on the fact that the infant sustained the fatal injuries while in defendant's exclusive care and on the opinions of their experts that the injuries could not have been sustained in the manner described by defendant. According to defendant, he fell on a patch of ice while carrying the infant in his arms and did not realize that she had been seriously injured in the fall until she subsequently stopped breathing.

During the trial, the People introduced, over defendant's objection, an autopsy photograph showing the infant's exposed skull, with the scalp pulled forward to reveal the flesh and bone beneath. When the record on appeal was prepared, it was discovered that this photograph was missing. Defendant contends that, as a result, he has been deprived of meaningful review of the claimed error in the admission of the photograph and that, therefore, the judgment must be reversed. We disagree. Where, as here, an exhibit has "`substantial importance' to the issues in the case," the critical inquiry is whether "the information in the missing exhibit can be gleaned from the record [with] no dispute as to its accuracy" (People v Yavru-Sakuk, 98 NY2d 56, 60). Barbara Wolf, a forensic pathologist who testified for the People, described the photograph in detail and there is no dispute as to the accuracy of that description. Accordingly, the loss of the exhibit itself does not prevent proper appellate review (see id.).

According to Wolf's description, the photograph revealed three distinct areas of bruising and Wolf concluded that the infant died as the result of at least three separate blunt force injuries to her head and brain. The photograph, therefore, was clearly relevant in that it tended to disprove defendant's claim that the fatal injury was accidental and occurred when he fell with her in his arms. In light of the demonstrated relevance of the photograph, the question of whether to permit the jury to view it was within the sound discretion of the trial court (see People v Stevens, 76 NY2d 833, 835) and we see no abuse of that discretion in this case. The fact that the photograph was gruesome did not preclude its admission, since it was not offered for the sole purpose of arousing the emotions of the jury or to prejudice defendant (see People v Wood, 79 NY2d 958, 960).

Defendant next claims that improper remarks by the prosecutor during summation warrant reversal of his conviction. While this argument was not preserved for appellate review, we nevertheless exercise our discretion and reverse on this issue in the interest of justice (see CPL 470.15 [6] [a]; see also People v Nevedo, 202 AD2d 183, 184). Considering the severity and frequency of the improprieties throughout the summation in which the prosecutor made at least a dozen direct references to defendant being a liar, made other references to defendant's "false" and/or "tailored story" and denigrated the defense expert by characterizing him as a puppeteer with defendant as his puppet, a new trial is warranted (see People v Walters, 251 AD2d 433, 434; People v Nevedo, supra at 185-186). In short, the misconduct...