People v. Wilcox

• Decision Date: 03 June 1993
• Citation: 599 N.Y.S.2d 131,194 A.D.2d 820
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark A. WILCOX, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 131

599 N.Y.S.2d 131

194 A.D.2d 820

The PEOPLE of the State of New York, Respondent, v. Mark A. WILCOX, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 3, 1993.

Richard Castellane, Hamilton, for appellant.

James E. Downey, Dist. Atty., Norwich, for respondent.

Before MIKOLL, J.P., and YESAWICH, CREW, MAHONEY and HARVEY, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Chenango County (Dowd, J.), rendered December 14, 1990, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Defendant was charged in a four-count indictment with murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. After trial, the jury rendered a verdict convicting him of manslaughter in the first degree and acquitting him of the other charges. County Court imposed a prison sentence of 8 1/3 to 25 years. This appeal by defendant ensued.

Defendant's first argument for reversal is that County Court erroneously admitted evidence of his uncharged prior bad acts, consisting of injuries allegedly inflicted upon the 12-week-old infant victim by defendant approximately 10 days to three weeks prior to the occurrence of the incident alleged in the indictment. We find this contention to be without merit. The People properly contend that such evidence was admissible to rebut the defense of mistake or accident (see, People v. Hudy, 73 N.Y.2d 40, 55, 538 N.Y.S.2d 197, 535 N.E.2d 250; People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Molineux, 168 N.Y. 264, 61 N.E.286). Defendant had initially claimed that he was bathing his 12-week-old son in the kitchen sink of his mobile home when the baby fell and hit his head on the sink while momentarily unattended. In response to police questions, however, defendant indicated that he struck the baby on the head and threw him into a chair because the baby would not stop crying.

Evidence of defendant's prior uncharged act or acts causing injury to the victim was admissible to demonstrate that the injuries resulting from the charged incident were not accidentally sustained (see, People v. Henson, 33 N.Y.2d 63, 71-73, 349 N.Y.S.2d 657, 304 N.E.2d 358; People v. Kloster, 167 A.D.2d 896, 561 N.Y.S.2d 986, lv. denied 77 N.Y.2d 908, 569 N.Y.S.2d 940, 572 N.E.2d 623). The evidence of the prior injuries was relevant to the issues and its probative value outweighed the potential for unfair prejudice (see, People v. Hudy, supra; People v. Engler, 150 A.D.2d 827, 540 N.Y.S.2d 591, lv. denied 75 N.Y.2d 770, 551 N.Y.S.2d 912, 551 N.E.2d 113). The lack of a clear link between the injuries to the child abuse victim here and defendant did not render such evidence inadmissible (see, People v. Henson, supra, 33 N.Y.2d at 72-73, 349 N.Y.S.2d 657, 304 N.E.2d 358; People v. Sims, 110 A.D.2d 214, 221, 494 N.Y.S.2d 114, lv. denied 67 N.Y.2d 657, 499 N.Y.S.2d 1054, 490 N.E.2d 570).

Although the People did not seek a pretrial ruling on the admissibility of the prior injury evidence (see, People v. Ventimiglia, 52 N.Y.2d 350, 361-363, 438 N.Y.S.2d 261, 420 N.E.2d 59), the failure to do so was not fatal. The record indicates that defendant was aware prior to trial of the People's intention to use the evidence and was not improperly surprised at trial (see, People v. Battes, 190 A.D.2d 625, 594 N.Y.S.2d 153). It is significant that here the prior injury evidence was admissible and the arguments of unfair prejudice are greatly diminished.

Defendant's other argument for reversal is meritorious. Defendant contends that County Court improperly denied his request to charge the jury that it could consider evidence of defendant's diminished mental capacity in determining whether defendant had the ability to form the requisite mens rea. Defendant's expert psychiatrist testified that defendant was mildly mentally retarded, with an IQ of approximately 69 and an intellectual age of approximately 10 years. The psychiatrist also opined that defendant could not perceive any danger to the baby if he threw the child on a chair. The People elicited from the expert on cross-examination that defendant had the ability to make moral judgments and to know "what was wrong and what was not wrong". We are...