People v. Wong

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM; All concur except MURPHY, P.J., and ASCH; MURPHY
• Citation: People v. Wong, 588 N.Y.S.2d 119, 182 A.D.2d 98 (N.Y. App. Div. 1992)
• Decision Date: 06 August 1992
• Parties: The PEOPLE of the State of New York, Respondent, v. Eugene WONG, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Mary WONG, Defendant-Appellant.

Page 119

588 N.Y.S.2d 119

182 A.D.2d 98

The PEOPLE of the State of New York, Respondent, v. Eugene WONG, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Mary WONG, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Aug. 6, 1992.

As Modified Aug. 10, 1992.

Jonathan Marks, New York City, of counsel (Henry J. Steinglass, with him, on the brief, Power, Weiss & Marks, attorneys), for defendants-appellants.

Mary C. Farrington, Brooklyn, of counsel (James M. McGuire, with her, on the brief, Robert M. Morgenthau, Dist. Atty., New York City, attorney), for respondent.

Before MURPHY, P.J., and CARRO, ELLERIN, ASCH and KASSAL, JJ.

PER CURIAM.

On June 26, 1988 the parents of three month old Kwok-Wei Jiang responded to an advertisement run by defendant Mary Wong in a New York Chinese language newspaper for a 24-hour babysitting service. The Jiangs, who both worked 12 hours a day, Monday through Saturday visited the defendants' one bedroom apartment on East 93d Street and gathered information about the service. They were told that the baby would be cared for primarily by defendant Mary Wong, who held herself out as a nurse who had previously worked in Hong Kong, but that the child would also receive care from her husband, defendant Eugene Wong, who was employed by the United Nations as a statistician. The baby would sleep in a crib directly next to the defendants' bed. Also living in the apartment was the Wongs' three year old son, Andrew, who appeared to be well cared for. The apartment was clean and neat and the Jiangs were sufficiently impressed with the arrangements so as to leave their infant in defendants' care. On the next Sunday, July 3, they visited their baby and, though they found him to be somewhat subdued, were not so concerned as to terminate the relationship.

On July 7, 1988, between 6:00 and 6:30 a.m., Mary Wong called Mr. Jiang and told him that his baby was dead. She stated that the baby had cried continually from midnight until 2 a.m., that later he was fed some "gripe water" (a dietary supplement which Mrs. Jiang had obtained from a Chinese pharmacy and given to defendants), and went to sleep. At that point both defendants went to sleep. When they awakened, the child had turned black. Mrs. Wong asked that Mr. Jiang come over to her apartment, but Mr. Jiang, who could scarcely believe what he had heard, instead tried to get in touch with his wife, who was working in New Jersey.

At 6:20, Eugene Wong placed a call to 911, requesting an ambulance for an unconscious child. Police Officers Burdett and Lopez immediately responded. When they arrived, both Mr. and Mrs. Wong were fully dressed, and both were noticeably calm. Mr. Wong, who had answered the door, told them he had called for an ambulance, not the police. He allowed them into the apartment and there, five feet from the front door, the officers observed a baby carrier holding Kwok-Wei Jiang. The officers could see that the baby, who was stiff and whose face was discolored, was already dead. The baby's legs were stiffly flexed in a manner conforming to the carrier. Downstairs, they gave the child to the paramedics, who had just arrived. According to paramedic Barbara Taylor, the child was cyanotic, i.e., blue from lack of oxygen, and rigor mortis had already set in.

At the hospital, Eugene Wong informed the paramedics that he and his wife had fed the baby, who had not been sick, at 1 or 2 a.m. and the child had quieted down. In the morning his wife had checked the baby and found that he was not breathing. Mr. Wong also spoke to the doctor, reporting that Kwok had awakened at midnight and cried for a long time and that both he and his wife had "attended the baby to see what was wrong." The child, who did not have diarrhea, vomiting, or fever, took no food, but, after two to two and a half hours, had stopped crying and "went to bed". At that point defendants had also gone to bed. At 6 a.m. one of them (the doctor did not recall which one) checked the baby and found that he was not breathing and had no heartbeat.

At the hospital, Officer Lopez called Mrs. Wong, who had remained at home with her son, to find out the baby's name and age, which Mr. Wong had not known. In addition to supplying the requested information, Mrs. Wong gave the officer the baby's parents' telephone number and informed the officer that the defendants had been caring for the baby for ten days and that he had been sleeping in the bedroom. She then asked if the baby had died, and Lopez told her that it had. Lopez then called Mr. Jiang but was unable to communicate with him because of his limited English. Lopez therefore called Mrs. Wong back and asked her to call Mr. Jiang to inform him of what had happened. According to Mr. Jiang, when Mrs. Wong called him it was approximately one hour after the original call. She asked him why he had not come over and he said he had been unable to locate his wife. He then asked if his child was really dead and this time Mrs. Wong stated that she did not know, and informed him that the child had been taken to the hospital in an ambulance. Mr. Jiang then reached his wife at work and they both went to the hospital.

That night Mrs. Wong called Mrs. Jiang and told her that she and her husband had been up with the baby in the living room from midnight until he finally fell asleep at about 2 or 2:30 a.m. She tried to feed him milk and water but he would not accept either, but she finally gave him some gripe water. When he finally fell asleep they brought him into the bedroom and also went to sleep. Mrs. Jiang asked Mrs. Wong why, if the baby was crying so much, she had not taken him to the hospital, and Mrs. Wong replied that nothing appeared to be wrong with the baby and if she had taken him to the hospital the doctor would have "scold[ed]" her. When she awakened in the morning the baby's face had turned black. In a later conversation however, Mrs. Wong told Mrs. Jiang that she had seen that the baby had had "cramps" and had been "shaking involuntarily." Mrs. Wong informed Mrs. Jiang that the probable reason for these symptoms was that Mrs. Jiang had used birth control pills or had taken Chinese herbal medicine.

An autopsy was performed on July 9, 1988. It was determined that Kwok-wei had died of various internal injuries to the brain, including rupture of the blood vessels causing subdural hematoma. There were no signs of external injury to the skull and it was undisputed that the injuries could be attributed solely to "shaken baby syndrome," a type of injury occasionally seen in children under one year old and caused solely by the accelerating and decelerating forces to which the child would be subjected as a result of having been violently shaken. The baby also had two confluent bruises on the upper buttocks which were unrelated to the head injuries and did not contribute to his death. These bruises, which were the only outwardly visible signs that the baby had been abused, had been caused by a blow administered within 24 hours of death.

On the same day that the autopsy was conducted, the defendants were arrested. At the time of his arrest, Mr. Wong spontaneously suggested to the arresting officer that Andrew, his three year old son, had caused the baby's death, stating, "[Y]ou're going to find out that he [Andrew] was involved, that he did it, he's like a little Rambo".

Evidence was also introduced at trial concerning two other infants who, while in the Wongs' care, had suffered injuries requiring hospitalization. In March, 1988, eighteen month old Kevin Hung, when taken by his father to the hospital after spending a month with the Wongs, was found to have a second degree burn on the sole of his foot, bruises on his face and body, and fractures, one recent and one several weeks old, in each leg. As a result, he was hospitalized for thirteen days. Earlier, on a visit, Kevin's father had observed a burn on the child's mouth, but had dismissed it as an accident when Mrs. Wong told him that Kevin had tried to taste some hot soup which she had left out to cool. In June of 1988, shortly before Kwok-Wei Jiang came into the Wongs' care, one and one half month old Jenny Chan was taken to the hospital by her father when he visited her at the Wongs' and saw that her face was badly discolored and that she was completely unresponsive. Mrs. Wong claimed that she had found the baby in that condition when she awoke and suggested that it was due to an "internal problem." Jenny was hospitalized for three days.

Both defendants were indicted on counts of manslaughter in the first degree. (Penal Law § 125.20(1)--with intent to cause serious physical injury to another causes the death of such other), manslaughter in the second degree--(Penal Law § 125.15(1)--recklessly causing the death of another) and endangering the welfare of a child (Penal Law § 260.10(1)--knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a child). After a trial during which the defense sought to attribute the infant's death to an accident at the hands of their 3 year old son, both defendants were convicted of each of the aforementioned counts in the indictment.

As a threshold matter, we reject defendants' argument that the jury's finding that the death of Kwok-Wei was not accidental was against the weight of the evidence. In that regard the expert testimony ruled out the possibility, raised by defendants, that the injuries could have been inflicted by the Wongs' three year old son and, indeed, defendants have not pursued that argument on appeal. Moreover, we find that the prosecution's expert testimony overwhelmingly demonstrated that these injuries could not have been inflicted upon the infant without the awareness and conscious disregard that they created a substantial and unjustifiable risk of death (Penal Law §§ 15.05[3]; 125.15[1]. The dissent points to certain expert...