People v. Wong

• Decision Date: 08 July 1993
• Citation: 619 N.E.2d 377,81 N.Y.2d 600,601 N.Y.S.2d 440
• Parties: , 619 N.E.2d 377 The PEOPLE of the State of New York, Respondent, v. Eugene WONG, Appellant. The PEOPLE of the State of New York, Respondent, v. Mary WONG, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 440

601 N.Y.S.2d 440

81 N.Y.2d 600, 619 N.E.2d 377

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

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

Court of Appeals of New York.

July 8, 1993.

[81 N.Y.2d 602] [619 N.E.2d 378] Lemole, McCarthy, Murphy & Associates, Staten Island (Paul A. Lemole, of counsel), for appellants.

[81 N.Y.2d 603] Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Mary C. Farrington and James M. McGuire, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Defendants Eugene Wong and Mary Wong were charged with homicide and endangering the welfare of a child as a result of the death of a three-month-old infant who had been entrusted to their care. There was evidence at trial that both defendants were continuously present in the couple's apartment and that one of them had shaken the infant violently enough to produce fatal injuries. However, because neither defendant gave a complete account of what had occurred and, apart from the Wongs' three-year-old son, there were no other witnesses, the People were unable to prove which defendant had administered the fatal shaking. The issue before us on this appeal from the judgment convicting both defendants of second degree manslaughter and endangering the welfare of a child is whether the People's case, as submitted to the jury, provided a sufficient factual basis for holding the defendant who had not shaken the infant as culpable for the infant's death as was the defendant who had actually committed the abusive acts. Under the circumstances of this case, we hold that the evidence offered against these defendants was legally insufficient to support the sole theory the People now advance to justify their conviction.

According to the evidence offered at trial, defendants had been retained to care for the three-month-old infant, Kwok-Wei, as a result of an advertisement they had placed in a local Chinese-language newspaper. The infant's parents, the Jiangs, both worked some 12 hours a day from Monday through Saturday and for that reason felt that they needed the 24-hour care that defendants were offering. The Jiangs were told that defendant Mary Wong would be providing much of their baby's care but that her husband, defendant Eugene Wong, would also be tending to Kwok-Wei's needs. Kwok-Wei was to sleep in a crib that was placed directly next to defendants' bed, which was located in the bedroom of their one-bedroom apartment. The Jiangs planned to visit their child on Sundays, their one day off from work.

The Jiangs' first visit with Kwok-Wei on July 3, 1988 was uneventful. Four days later, however, defendant Mary Wong called the baby's father at about 6:30 A.M. and informed him that Kwok-Wei was dead. Ms. Wong told Jiang that the baby had cried continually from about midnight to about 2:00 A.M. on the previous night, that he had been given some "gripe water" obtained from a Chinese pharmacy, that everyone in the household had subsequently gone to sleep and, finally, that when defendants awoke they found that the baby had "turned black." According to police department records, defendant Eugene Wong placed a "911" call at approximately the same time, requesting an ambulance for an "unconscious" child.

The police officers who responded to this call immediately noticed that defendants were fully dressed and appeared calm. Upon looking around the room, they saw the already dead infant lying in a baby carrier. The child's face was discolored and his limbs were stiff and flexed in conformance to the shape of the carrier.

After the police's arrival, defendants made additional, somewhat inconsistent statements about the events of the preceding night. Defendant Eugene Wong told the paramedics at the hospital that the baby had not been sick and had quieted down after he and his wife had fed him at 1:00 or 2:00 A.M. Wong also told the attending physician that the baby had awakened at about midnight and cried for about 2 1/2 hours, during which time both he and his wife "attended the baby to see what was wrong." According to Wong, Kwok-Wei eventually went to sleep and nothing else occurred until he was checked the next morning, at which point one of the Wongs observed that he was not breathing and had no heartbeat.

While she was at the hospital, Mary Wong asked a police officer whether the child had died and was informed that he had. Nonetheless, she then called Kwok-Wei's father at the officer's request and, in response to Jiang's expressions of disbelief, told him she did not know whether his child was really dead. Several hours later, she spoke to Kwok-Wei's mother, telling her that the child had fallen asleep at about 2:00 or 2:30 A.M. after having cried for two hours and having refused milk and water. Although Wong initially told the infant's mother that Kwok-Wei had not appeared to be ill, she stated in a subsequent conversation that the child had had "cramps" and had been "shaking involuntarily." Wong attributed these symptoms to the mother's prior use of birth control pills or Chinese herbal medicine.

An autopsy performed on the child revealed that he had died as a result of internal brain injuries, including ruptured blood vessels, that could only be attributed to "shaken baby syndrome." That condition occurs when an infant under the age of one is subjected to violent shaking causing his or her head to snap back and forth. Under those conditions, the infant's brain, which is very soft, will move around inside the head, leading to ruptured blood vessels, hemorrhaging and swelling.

"Shaken baby syndrome" is not necessarily accompanied by external injuries. A baby suffering from the effects of a violent shaking would initially cry sharply and then, within about 30 minutes, lapse into a coma that would resemble ordinary sleep to a person who was not watching for the movements that naturally occur during sleep. According to the People's experts, prompt medical attention can prevent fatality in cases such as Kwok-Wei's, although serious permanent injuries, including blindness and intellectual impairment, are almost inevitable.

On the basis of the foregoing evidence, both defendants were indicted and tried on charges of first and second degree manslaughter (Penal Law § 125.15; § 125.20 and endangering the welfare of a child (Penal Law § 260.10. After the People's direct case was presented to the jury, counsel for both defendants moved to dismiss on the ground that the proof had not established that either Eugene Wong or Mary Wong was the person who had caused the infant's fatal injuries. The prosecutor argued, in response, that the People's case rested on the theory that each defendant was independently liable for Kwok-Wei's death because one of them had shaken the baby while the other had stood by and failed to intervene. According to the People's theory, the defendant who had not actually shaken the infant, the "passive" defendant, was equally culpable because of his or her omission in failing to fulfill a duty that was imposed by law.

The trial court adopted the People's argument and declined to dismiss the indictment. The court subsequently charged the jury that it could find the "passive" defendant guilty for failing to act if it determined that that defendant "had a duty to prevent another from harming the infant" or to obtain "proper and prompt medical care" and, having had the requisite mental state, had failed in the performance of that duty despite having had the ability to act. The jury returned a guilty verdict on all counts against each defendant.

On defendants' appeal, the Appellate Division modified by dismissing the convictions for first degree manslaughter on the ground that the finding that defendants had acted, or failed to act, with the "intent to cause serious physical injury" (see, Penal Law § 125.20 was against the weight of the evidence. 182 A.D.2d 98, 588 N.Y.S.2d 119. The Court, however, rejected the contention that the People's failure to adduce evidence identifying the person who had actually shaken the baby vitiated the entire prosecution. Instead, over a vigorous dissent, the Court ruled that the convictions for second degree manslaughter and endangering the welfare of a child were sustainable because there was sufficient evidence to support a finding that the "passive" defendant had failed to perform a duty imposed by law under any one of a number of diverse theories.

On this appeal, the People have limited their case to a single theory. Eschewing several of the theories advanced by the Appellate Division majority, the People now argue only that the convictions of both defendants should be upheld because there was sufficient evidence for the jury to infer that "one of them shook the baby violently while the other, aware of the harm being done, failed to seek medical assistance." We agree that the People's formula could theoretically support convictions in a proper case. We conclude, however, that in this case the evidence adduced at trial simply does not provide a sufficient factual basis for finding the "passive" defendant guilty of committing second degree manslaughter by an act of omission. Accordingly, although one of the defendants could properly have been found guilty of second degree manslaughter by shaking Kwok-Wei to death, the convictions of both defendants must now be reversed because there was no evidence tending to show which of the two accused individuals was the abusive actor.

Initially, we note that the People's theory against the "passive" defendant is legally sound. Under the Penal Law § 15.10, an individual's criminal liability may be predicated on an "omission." The "minimal" statutory requirement for criminal liability is "conduct which includes a voluntary act or the omission to perform an act which [the accused] is physically capable of performing" (id.). An "omission" is defined as "a...