People v. Steinberg

• Decision Date: 08 August 1991
• Citation: 573 N.Y.S.2d 965,170 A.D.2d 50
• Parties: The PEOPLE of the State of New York Respondent, v. Joel STEINBERG, a/k/a Joel Barnet Steinberg, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 965

573 N.Y.S.2d 965

170 A.D.2d 50

The PEOPLE of the State of New York Respondent, v. Joel STEINBERG, a/k/a Joel Barnet Steinberg, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Aug. 8, 1991.

Perry S. Reich, of counsel (Steven M. Schapiro, North Lindenhurst, and Mel Sirkin, New York City, with him, on the brief, Schapiro & Reich, North Lindenhurst, attorneys), for defendant-appellant,

Mark Dwyer, of counsel (Patricia Curran, Alan Gadlin, Paula Milazzo and Donald J. Siewert, with him, on the brief, Robert M. Morgenthau, New York City, attorney), for respondent.

Before SULLIVAN, J.P., and ROSENBERGER, KUPFERMAN, SMITH and RUBIN, JJ.

SULLIVAN, Justice.

During the afternoon of November 1, 1987, defendant was at home in apartment 3W at 14 W. 10th Street with his six-year-old "adopted" daughter, Lisa Steinberg, his live-in companion of over ten years, Hedda Nussbaum, and his other "adopted" child, Mitchell, a 16-month old boy. There was no evidence that either child had ever been legally adopted. Defendant had earlier expressed annoyance with Lisa for not drinking enough water and warned her that he would not take her with him to a dinner engagement unless she obeyed him.

At approximately 6 p.m., Lisa, at Nussbaum's suggestion, went into the bedroom to ask defendant if he would take her with him. Moments later, defendant carried Lisa's limp body out to Nussbaum, who was in the bathroom. Lisa, who had been fully clothed and was now wearing only underpants, was unconscious. Nussbaum had not heard any noises after Lisa had entered the bedroom. In response to Nussbaum's inquiry, defendant replied, "What's the difference what happened. This is your child. Hasn't this gone far enough?" Nussbaum had no idea what defendant meant by this remark. Defendant handed Lisa to Nussbaum, who placed her on the bathroom floor. Lisa's eyes were closed, she was unresponsive and she was not moving at all. Her breathing was raspy.

During the next hour, while defendant dressed to go to dinner, Nussbaum tried to revive Lisa by pressing down on her back in the lung area so as to pump her chest. When defendant left the apartment at 7:00 p.m., he reassured Nussbaum that he would "get [Lisa] up when [he] g[o]t back." Nussbaum, who had come to believe that defendant had many "god-like powers", including healing and extrasensory perception, expected that he would get Lisa up when he returned.

Lisa's condition did not change during the three hours in which defendant was absent from the apartment. Nussbaum considered calling 911, but was afraid that defendant would consider it a sign of "disloyalty." As Nussbaum testified, defendant "was always making a big deal ... that I should be loyal to him." Nussbaum herself had on her leg five or six day-old, badly infected ulcers, which were painful and oozing pus, causing her to limp. She had not sought medical attention because defendant had promised to heal her.

At 10:00 p.m., defendant returned to the apartment, asked for a file relating to his oil well investments and went back outside to show the file to the client with whom he had dinner. About five minutes later, defendant returned to the apartment. As he looked at Lisa, Nussbaum anxiously urged him to "get her up." Defendant refused with the comment, "[N]o, we have to be relating when she wakes up." Then, referring to freebasing cocaine, he said, "[L]et's smoke." Nussbaum located the last cocaine left in the house and prepared it. Defendant smoked for a "number of hours" until the cocaine was finished. Nussbaum, whose leg was bothering her, had only one or two puffs. As they smoked, defendant referred to the bedroom incident, stating, "I knocked her down and she didn't want to get up again. This staring business has gotten to be too much for her."

On several occasions that night, Nussbaum suggested to defendant that they "get Lisa up." Defendant promised that he would. Finally, at approximately 4:00 a.m., upon Nussbaum's urgings, defendant picked up Lisa's limp body from the bathroom floor and placed her on their bed. Defendant sat with his arm resting on Lisa, whose breathing then sounded better. He did nothing else to aid her. Defendant then said that he was going to sleep. Nussbaum said she would sit up and watch Lisa. Instead of sleeping, defendant talked.

At approximately 6 a.m. Nussbaum went to the bathroom. "Sounding frantic," defendant called to her and she ran back to the bedroom. Defendant said, "[S]he stopped breathing." Defendant was trying to revive Lisa by "pushing at her back" and "giving her some breaths." Nussbaum asked if she should call 911. Defendant said, [N]o, give me a chance first to do something." He continued with his "frantic movements." When Nussbaum asked, several minutes later, if she could help, defendant told her to call 911. She did. Defendant, who had already started to perform mouth-to-mouth resuscitation, followed the 911 operator's instructions as to the correct technique.

The police and paramedics arrived at apartment 3W at about 6:40 a.m. and promptly administered oxygen to Lisa. A Heimlich maneuver was performed to remove an obstruction, which turned out to be a teaspoonful of partially digested food, apparently vegetables. When Lisa failed to breathe on her own after the obstruction was removed, it suggested to the paramedics that she had been unconscious even before she had started vomiting, contrary to defendant's explanation that she had choked on vegetables she had been eating. The paramedics then decided to bring Lisa to the pediatric emergency room of St. Vincent's Hospital, where numerous medical personnel attended to her. They placed a tube through her mouth into her trachea to insure that air would go directly into her lungs. The medical personnel observed that Lisa's body was covered with bruises in various stages of discoloration, some as recent as one or two days old; others were a week or more old. Both arms and legs contained multiple bruises. There were at least eight brownish-green bruises on her left leg, on the knee, below her knees, and on the inner part of her thigh, and three multicolor bruises on her right leg. One bruise below Lisa's left knee was red with a brown border indicating that she had been injured there on several occasions.

In addition, there were multiple, yellow to yellow-brown colored bruises on Lisa's chest, a red bruise on her right side and a black and blue bruise on her left buttock. There were also three bruises on Lisa's back over her left shoulder blade, one of which, since it was red, appeared to have been incurred within the last 24 hours; the other bruises were greenish-brown. There was a scratch mark on Lisa's right shoulder blade. There were at least four brown-blue bruises in the lumbo-sacral area. These bruises were considered particularly significant since it is almost impossible for a child to injure himself or herself in that area. In addition to the multiple bruises, Lisa was in a "state of poor hygiene." Her hair was heavily matted and tangled. A two-inch chunk of hair was either cut or pulled out near the back of her neck. Her toenails were dirty and her feet, which had "six layers of dirt" on the soles, were "filthy". Some of the dirt, which appeared to go up to her ankles, was scaling. There was an "extensive amount" of dirt in her fingernails. Her body smelled of urine and vomit. At trial, an expert in pediatrics and child abuse testified, concluding, on the basis of her review of Lisa's medical records, the autopsy report, pictures of Lisa at the hospital and defendant's apartment, that Lisa suffered from battered child syndrome.

Within minutes after Lisa was brought into the emergency room, a neurological examination was performed, on the basis of which the neurological resident, Dr. Kilhenny, concluded that her brain was severely swollen and pressing down on the brain stem and that the swelling was caused by a subdural hematoma located near a bruise on the right side of Lisa's forehead, below her hairline and extending into her hair. The bruise was red, indicating that it was recently sustained. Dr. Kilhenny noted perioptic ecchymosis, or bruises around both eyes and commonly referred to as "raccoon eyes", a condition that can be caused by a sphenoid bone fracture, which causes bleeding into the sinuses and is indicative of serious head trauma. Dr. Kilhenny concluded that blunt trauma was the cause of the hematoma.

Defendant's explanation at the time was that Lisa had complained of a stomach ache and had been put to bed after dinner. According to defendant, Lisa woke him and Nussbaum at about midnight. She was taken to the bathroom, where she vomited. Believing she was all right, defendant put her back to bed. Defendant heard Lisa vomiting a little while later but did nothing because he believed she was all right. When he and Nussbaum went to Lisa's room sometime around 6 a.m., they found she had vomited again, was having difficulty breathing and was making coarse breath sounds.

When Dr. Kilhenny advised defendant that although Lisa might survive she had severe brain damage, which was irreversible, and that she would have "permanent neurological deficits", he responded, "Well, she is not going to be an Olympic athlete, but she will survive." At another point, when a police officer asked defendant what had happened to his hand, which appeared to be bruised, he nervously responded, "I don't know, I don't know that I had this." After defendant left the hospital, Dr. Kilhenny, strongly suspicious of child abuse since his clinical findings were consistent with head trauma and did not "jibe" with the history given by defendant, called the police.

A CAT scan confirmed the severe trauma and brain swelling, but gave no indication of bone fracture. It also showed that the usual spaces around the brain stem were completely obliterated, suggesting that there was pressure pushing the brain down...