People v. Tiger

• Citation: 110 N.E.3d 509,85 N.Y.S.3d 397,32 N.Y.3d 91
• Decision Date: 14 June 2018
• Docket Number: No. 62,62
• Parties: The PEOPLE of the State of New York, Appellant, v. Natascha TIGER, Respondent.
• Court: New York Court of Appeals

32 N.Y.3d 91

110 N.E.3d 509

85 N.Y.S.3d 397

The PEOPLE of the State of New York, Appellant,

v.Natascha TIGER, Respondent.

No. 62

Court of Appeals of New York.

June 14, 2018

David M. Hoovler, District Attorney, Goshen (Robert H. Middlemiss and Andrew R. Kass of counsel), for appellant.

Larkin, Ingrassia &Tepermayster, L.L.P., Newburgh (John Ingrassia and Chelsy Jones of counsel), for respondent.

White & Case LLP, New York City (Kenneth Caruso of counsel), Robert S. Dean, Center for Appellate Litigation, New York City, New York State Association of Criminal Defense Attorneys, White Plains (Richard D. Wilstatter of counsel), and Chief Defenders Association of New York, Bronx (Justine Olderman of counsel), for Center for Appellate Litigation and others, amici curiae.

OPINION OF THE COURT

Chief Judge DiFIORE.

The issue presented by this appeal is whether a claim of actual innocence lies under CPL 440.10(1)(h) to vacate a judgment of conviction obtained upon a defendant's guilty plea. We hold that defendant's actual innocence claim is not a ground for relief.

I.

Defendant, a licensed practical nurse, was employed as a caregiver for the victim—a profoundly disabled ten-year-old girl. The victim is blind, unable to speak, immobile and dependent upon others for her personal care and needs. On the afternoon of November 23, 2011, while in the sole care of defendant, the victim was bathed using a hand-held showering device, while lying on a mesh cot in the bathtub. According to defendant's initial account, as she was applying lotion to the victim after the bath, she observed that the skin on the victim's legs was red and peeling.

The defendant contacted the victim's parents and, upon their return to the home, they immediately sought medical treatment for their daughter. The child's pediatrician, who was informed that defendant had bathed the victim prior to the onset of symptoms, diagnosed the victim with an adverse reaction to Biaxin, an antibiotic that she had recently been prescribed, and referred the child to Westchester Medical Center (WMC) for further treatment. The initial diagnosis at WMC was likewise that the victim's skin condition—attributed to either Stevens–Johnson Syndrome (SJS) or Toxic Epidermal Necrolysis (TEN)¹ —was caused by a reaction to her medication. On November 25, the director of the burn unit at WMC examined the victim and concluded that her injuries were more consistent with a scald burn than SJS or TEN. The victim was ultimately treated for third-degree burns and required surgery for skin grafts. She was not released from WMC until January 3, 2012.

Upon a report of the child's condition, an investigation was commenced by the Orange County Child Abuse Task Force. Defendant provided a statement to the authorities in which she admitted that she burned the child with hot water while bathing her. In that statement, defendant indicated that, while bathing the child, "the water hit my hand and I could feel that the water was very hot." Defendant stated that she adjusted the water temperature, finished the bath by washing the child's hair and started to dry the child's body. Defendant also stated that she "noticed redness and peeling on [the victim's] legs. I knew then that I had burned [the child] because the water was too hot when I was bathing her." Defendant subsequently wrote a letter of apology to the victim's mother.

In April 2012, defendant was charged by indictment with assault in the second degree; endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree; two counts of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree; endangering the welfare of a child; and two counts of assault in the third degree.

Following plea negotiations, on July 24, 2012, defendant pleaded guilty to the lesser charge of endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the first degree in full satisfaction of the indictment. The court, in recording the offer, stated the plea was to a nonviolent felony and the range of sentence was open, but included a consideration of county jail time and probation instead of state prison. In the following comprehensive plea colloquy, defendant, who was represented by retained counsel, affirmed that she understood the rights that she was waiving by pleading guilty and admitted that she was pleading guilty because she was, in fact, guilty. Defendant also admitted that she recklessly caused the victim serious physical injury. The court asked defendant if she had tested the bath water to make sure that it was not too hot and she responded, "[y]es. When I tested it, it was not that hot." Defendant then engaged in an off-the-record discussion with her attorney and when they came back on the record, the court noted that, in order for the child to have sustained third-degree burns, the water had to be "hotter than it should have been." The court then asked, "[d]id you make an error when you were testing that water in trying to determine whether it was the proper temperature level for this child?" and defendant responded, "[y]es." In response to the court's further questioning, defendant admitted that she was "reckless in the care that [she] afforded this young child, and thereby caused her this physical injury." The guilty plea was accepted and the matter adjourned for sentencing. In September 2012, defendant was sentenced to a split sentence of five years' probation and a concurrent term of four months' imprisonment. Defendant did not move to withdraw her guilty plea before sentence and did not appeal the judgment of conviction.

Separately, the victim's family commenced a personal injury action against defendant and her employer. By virtue of her guilty plea in the criminal action, defendant was precluded from contesting liability in the civil trial. Nonetheless, the civil jury unanimously concluded that the care defendant rendered to the victim was not a substantial factor in the cause of the victim's injuries.²

On April 9, 2014, defendant moved pursuant to CPL 440.10(1)(h) to vacate the judgment. She alleged that her guilty plea was unconstitutionally obtained due to the ineffective assistance of her counsel. She also asserted a claim of actual innocence relying on the Second Department's decision in People v. Hamilton, 115 A.D.3d 12, 979 N.Y.S.2d 97 (2d Dept. 2014), recognizing a freestanding claim of actual innocence pursuant to CPL 440.10(1)(h). As a remedy, defendant sought vacatur of her conviction and the dismissal of the indictment or, in the alternative, an evidentiary hearing on the factual issues raised. The actual innocence claim was based on the argument that defendant did not cause physical injury to the child, as the child's injuries were attributable to TEN. In support of this claim, defendant provided the hospital medical records and a pathology report of the biopsy results existing at the time of the guilty plea, her own affidavit, and an affirmation from a medical expert retained in connection with the civil action. In her own affidavit, defendant denied her guilt notwithstanding her preaccusatory admissions of guilt and her sworn statements in the plea proceedings.

Defendant also included a transcript of the testimony of Dr. Joseph Turkowski, the treating physician at WMC, who testified in support of the plaintiffs' case at the civil trial. Turkowski opined that the child's serious physical injuries had been caused by scald burns. The conflicting medical opinion offered in the affidavit of defendant's expert as to the cause of the child's injuries also diverged from Turkowski's testimony in other specific respects—particularly, the significance that should be attached to several factors: the positive "Nikolsky sign," the demarcation of the injury, the spread of the condition, the development of cellulitis, and the biopsy results. Significantly, the attached biopsy report, available prior to the guilty plea, stated that the results were consistent with either a diagnosis of TEN (in the absence of oral lesions), or SJS (if oral lesions were present), and indicated that "[f]urther clinical pathologic correlation is recommended."

As to the ineffective assistance of counsel claim, defendant argued that her counsel was ineffective for failing to properly investigate the nature and cause of the child's physical injuries—a material element of the crimes charged. Specifically, she alleged that, despite the fact that the medical records showed a possible alternative and noncriminal cause of the child's injuries (TEN or SJS) and indicated that a biopsy had been taken, counsel failed to obtain the results of that biopsy or consult with a medical expert. Defendant represented that she told her attorney that she had tested the child's bath water and that it was not hot. She also represented that she told defense counsel that her employer had notified her that the victim was suffering from SJS. Defendant averred that, when they discussed the possibility of consulting an expert, defense counsel—who was aware that defendant was already struggling to pay his legal fees—told her that an expert would be expensive and failed to advise her as to the availability of any alternative source of financial assistance. In addition, defendant asserted that defense counsel advised her that, by pleading guilty, she would likely avoid a lengthy term of state prison. Thus, defendant claimed that, based on counsel's advice and her inability to afford a medical expert, she agreed to plead guilty in exchange for a favorable sentence when she was not, in fact, guilty. Finally, defendant maintained that, when she told the court during the plea proceedings that the water was "not hot," defense counsel privately advised her during an off-the-record conference "that [she] had to admit that the water was hot if [she] wanted to...