Defendant appeals from a judgment of the Supreme Court, Bronx County (Denis J. Boyle, J.), rendered November 1, 2007, convicting him, after a jury trial, of manslaughter in the second degree, and imposing sentence.
The opinion of the court was delivered by: Acosta, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Luis A. Gonzalez, P.J., John T. Buckley, James M. Catterson, James M. McGuire, Rolando Acosta, JJ.
The issue in this case is whether defendant's counsel was ineffective as a result of his failure to request that the court charge the jury on criminally negligent homicide as a lesser included offense of manslaughter in the second degree, the offense of which he was convicted. We find that the record before us is insufficient to deem trial counsel ineffective.
Defendant was indicted for the crimes of murder in the second degree (two counts), manslaughter in the first degree and endangering the welfare of a child, for causing four-year-old Quachaun B.'s death on January 30, 2006. Quachaun lived with his 26-year-old mother, Aleshia Smith, defendant, who was his mother's 18-year-old boyfriend, and his 4 sisters, ages 12, 11, 6 and 1.
Quachaun's 11-year-old sister Nyeshia testified that on January 27, 2006, as Quachaun climbed on furniture in the bedroom, he fell and landed on his back and a television fell on him. Defendant, who was baby-sitting, began pushing on the child's chest and blowing air through his mouth. When Quachaun woke up, defendant placed him on a bunk bed, sat down behind him and wrapped both hands around the child's neck. He then started banging both sides of the child's head against the wall. Quachaun started to cry and then stopped moving. When Smith came home, Nyeshia told her what happened, but Smith did not take Quachaun to the hospital.
The following day, Quachaun vomited in the family car on the way to an outing. Although Nyeshia pleaded with her mother to take him to the hospital, Smith left him with a babysitter while the rest of the family continued on their outing. Defendant was away that day but returned that evening and repeatedly struck Quachaun with his hands and a plastic bat. That evening, Nyeshia saw long black and blue lines on Quachaun's body. He had stopped talking and was moaning repeatedly.
Quachaun's condition worsened the following day, but Smith went to a party in the evening and left the children with defendant. Once again, according to Nyeshia, defendant beat Quachaun with his hands and a bat and banged Quachaun's head against the wall because Quachaun did not eat his food.
Later that night, Nyeshia saw defendant "holding [Quachaun's] waist and . . . throwing him up and catching him." She testified that defendant was trying to revive him but Quachaun did not respond. Defendant then began hitting Quachaun in the back with the plastic bat until Nyeshia carried the child to bed.
At 2:35 A.M. on January 30, Smith called 911 and reported that a television had fallen on her son. Defendant took the phone and said that it looked like the child was not breathing and that he was dead. Defendant also told the operator that a television had fallen on the child, but that the child "came out of it ok," that he was sleeping very well, was calm, but that "today" he was lying in bed and that defendant was checking on him all the time because he "looks a little beaten up." Defendant added that the child had had a seizure that day and that he had bitten his tongue, twisted his hands and feet and stopped breathing.
A paramedic who responded to the apartment testified that defendant told him in broken English that Quachaun was playing with the other children so he went out for a while and returned to find Quachaun unconscious. When the paramedic asked if Quachaun had been ill, defendant told him that a television had fallen on Quachaun the day before, but that he had taken him to the hospital and that the hospital had released him. Defendant, however, ...