People v. Waite

• Decision Date: 01 December 2016
• Citation: 42 N.Y.S.3d 437,145 A.D.3d 1098,2016 N.Y. Slip Op. 08125
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary L. WAITE, Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1098
42 N.Y.S.3d 437
2016 N.Y. Slip Op. 08125

The PEOPLE of the State of New York, Respondent,
v.
Gary L. WAITE, Appellant.

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

Dec. 1, 2016.

42 N.Y.S.3d 438

David M. Abbatoy Jr., Rochester, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., ROSE, DEVINE and MULVEY, JJ.

GARRY, J.P.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered December 12, 2013, upon a verdict convicting defendant of the crimes of murder in the second degree, manslaughter in the second degree and endangering the welfare of a child.

Defendant's 15–month–old child sustained fatal head injuries while he was in defendant's exclusive care. Defendant was thereafter charged with murder in the second degree, manslaughter in the second degree and endangering the welfare of a child. In March 2012, the People moved to disqualify defendant's two retained attorneys due to a conflict of interest. One of the attorneys withdrew and, following a hearing, County Court disqualified the second attorney with defendant's consent.

42 N.Y.S.3d 439

Thereafter, defendant's new attorney advised the court that he had previously represented the child's mother. At a hearing, the mother testified that she had shared information with this counsel that she considered to be secret. Counsel objected to disqualification, and defendant stated that he was willing to waive the potential conflict of interest, but the court nevertheless deemed counsel to be disqualified and assigned a fourth attorney to represent defendant. Thereafter, the court granted defendant's motion to dismiss the charge of murder in the second degree on the ground that there was insufficient evidence to establish depraved indifference. Upon the People's appeal, this Court reversed and reinstated the charge (108 A.D.3d 985, 987, 969 N.Y.S.2d [2013] ). Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 25 years to life. Defendant appeals.

Defendant contends that the evidence of indifference and recklessness was legally insufficient to support his conviction for depraved indifference murder. As for indifference, the People were required to show that defendant's mens rea when the crime occurred was one of “an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not” (People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 844 N.E.2d 721 [2005] ; see People v. Feingold, 7 N.Y.3d 288, 296, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006] ). The People established at trial that defendant was alone with the child from approximately 11:00 a.m. to 6:00 p.m., at which point his sister arrived, found the child unresponsive and directed defendant to call 911. Defendant initially told police that the child had fallen off a couch and cut his lip between 2:00 p.m. and 3:00 p.m., that he called a friend who often helped him care for the child for advice, and that she told him not to seek medical assistance yet and to keep the child awake. After the child fell, according to defendant, he played with a stuffed animal and later watched television while seated in a chair, getting up a few times to come over to defendant.

Defendant told police that shortly before 6:00 p.m., the child stood up, fell forward and hit his face on a metal chair. He stated that the child was bleeding and gasping for air, and his eyes were rolling back in his head. Defendant called the friend and his mother to tell them that the child was “hurt bad,” and they dispatched his sister to his home. He stated that he did not call for medical assistance because “[he] was panicking and [emergency personnel] wouldn't have understood [him].”

Later that evening, defendant amended his statement, acknowledging that he had not previously told the police the full truth. He stated that the child cried for 20 or 30 minutes after the initial fall from the couch. When the child “wouldn't stop bugging out,” defendant became frustrated and “tossed” him to the other end of the couch; the child bounced off and his head hit the hardwood floor. According to defendant, the child then “mellowed out” and “looked tired and not like [he] usually act[ed].” In a separate conversation that same evening, defendant told an emergency room nurse that the child “wasn't acting right” after he fell out of a chair, and that he heard the child “make a weird noise and was moving weird.” The nurse testified that, based upon defendant's description and demonstration, she identified the strange sound as agonal breathing and the unusual movements as posturing, both of which were signs of severe brain injury.

The uncontradicted testimony of the People's medical witnesses challenged the

42 N.Y.S.3d 440

credibility of defendant's explanations for the child's catastrophic head injuries, which included a fractured skull, a subdural hematoma and severe swelling of the brain. The treating emergency room physician, the medical examiner and a pediatric neurosurgeon opined that these injuries could not have resulted from falling or bouncing off a couch or chair. Instead, such injuries were caused by significant force, such as that of a car crash or a fall from an upper story; the emergency room physician testified that he had seen comparably severe injuries caused, in one case, by an elevator that fell on a child's head and, in another, by a collapsing gravestone. The medical testimony further called into question defendant's claim that the child was able to play, watch television, stand up and walk after the initial injury. The physicians opined that the child probably never regained consciousness; if he did so briefly, he would have been in severe pain and would quickly have become unresponsive and then comatose. The medical examiner testified that the child's increasing lethargy and unresponsiveness—caused by the swelling of his brain as time passed—would have been “very obvious” to an average layperson. He further testified that several injuries on the child's face, arms and legs—which included facial bruises consistent with being punched in the eye, other bruises on his face and upper thighs, a bruise on his arm consistent with being grabbed, and a facial laceration that would have required sutures if he had survived—had occurred contemporaneously but could not all have resulted from a single blow. The neurosurgeon testified that the time interval between the infliction of these injuries and the arrival of medical assistance could have been up to three hours.

This evidence was supplemented by the testimony of two neighbors who heard a loud banging sound in defendant's apartment that afternoon. One neighbor, who lived below defendant's apartment, said that the sound was so loud that it frightened his children. The other neighbor, who was outside, stated that he heard a loud bang as if “someone was carrying a couch and dropped it on a wooden floor” followed by a scream like “a terrifying kid in anguish” that was not a child's normal cry. Thereafter, he heard more bangs, interrupted by crying and screaming that indicated to him that a child “was being hurt.” After a total of seven or eight bangs, the child made no more sounds.

Taken as a whole, the jury could rationally have concluded that defendant brutally assaulted the child because he did not stop crying after the initial, relatively minor fall from the couch. This attack occurred—by defendant's own account—sometime between approximately 2:30 p.m. and 3:30 p.m. The jury could further have concluded that defendant's failure to seek medical assistance for the child during the hours that followed—despite his admitted awareness that the child was behaving abnormally and his knowledge of “the brutal origin of the injuries and the force with which they were inflicted”—displayed the wanton, uncaring mental state that constitutes depraved indifference (People v. Barboni, 21 N.Y.3d 393, 402, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2012] ; see People v. Nelligan, 135 A.D.3d 1075, 1077–1078, 22 N.Y.S.3d 697 [2016], lv. denied 27 N.Y.3d 1072, 38 N.Y.S.3d 843, 60 N.E.3d 1209 [2016] ; People v. Keegan, 133 A.D.3d 1313, 1316, 20 N.Y.S.3d 796 [2015], lv. denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ; People v. Johnson, 127 A.D.3d 451, 451–452, 7 N.Y.S.3d 106 [2015...