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People v. Lewie

November 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ALICIA LEWIE, APPELLANT.



The opinion of the court was delivered by: Kavanagh, J.

MEMORANDUM AND ORDER

Calendar Date: September 18, 2009

Before: Cardona, P.J., Peters, Kavanagh, Stein and McCarthy, JJ.

Appeals (1) from a judgment of the County Court of Warren County (Hall Jr., J.), rendered June 26, 2008, upon a verdict convicting defendant of the crimes of manslaughter in the second degree (two counts), reckless endangerment in the first degree and endangering the welfare of a child, and (2) from a judgment of said court, rendered June 27, 2008, which resentenced defendant.

On the evening of November 13, 2007, a 911 call was received at the Warren County Sheriff's Department from a woman later identified as defendant to the effect that she was en route to the hospital because she had fallen in the shower while holding her infant child and, as a result, the child was severely injured. Upon defendant's arrival at Glens Falls Hospital, emergency room medical staff found that the child was not breathing and had no heartbeat. An initial examination revealed that the child -- who was less than eight months old -- had extensive bruising at different stages of healing around his eyes and head, red marks on his neck and torso and bite marks on both arms. Radiological studies determined that the child's right arm was broken, his lung was collapsed, his liver was lacerated, numerous ribs were fractured and that multiple bleedings had occurred in and around the brain. After extensive efforts were made to resuscitate the child, his heartbeat was restored, but because he could not breathe on his own, he was placed on a respirator. The child was later transferred to Albany Medical Center and, after no brain activity was detected, life support was removed. Shortly thereafter, at 6:18 P.M. on November 14, 2007, the child expired.

Because of the injuries noted on the child upon his initial admission into the hospital and inconsistencies in the statements made by defendant and her roommate/boyfriend, Michael Flint Jr., as to the cause of these injuries, emergency room personnel notified the Glens Falls Police Department, which immediately commenced an investigation. Defendant repeated the claim to the police that she had made to emergency room personnel that the child had been injured when she fell while holding him in the shower. Over the next 48 hours, defendant made a series of statements to the police, two of which were reduced to writing, in which she acknowledged that she had lied when she had said that the child was with her in the shower when injured; instead, defendant told police that on November 12, 2007 she had gone to work and left the child with Flint, who, during a telephone call later that day, told her that the child had been injured when he slipped out of Flint's hands in the shower and struck his head and neck on the faucet and shower bar. According to defendant, when she told her coworkers what had happened with the child, they advised her to examine the child closely for any evidence of head trauma and consider taking him to a doctor for appropriate medical attention. Upon her return home that evening, defendant saw that the child's eyes were black and blue, his lip was swollen and there were red marks on his neck and torso. However, defendant claimed that the child did not appear to have a concussion and, when he otherwise appeared normal, she decided not to seek medical attention. Instead, she put the child to bed and gave him Tylenol, Orajel and a bottle of formula. Throughout the night, defendant checked on the child's condition and, on the following morning, noted that while some of the bruises on his face looked to be healing, the injuries to his eyes, neck and torso had blackened and appeared to have grown worse.

The next day, defendant, with the child and Flint, briefly left their apartment and stopped at the local Community Action Program.*fn1 There, when an employee asked about the bruises that she had noticed on the child's eyes and face, defendant stated that they had occurred as a result of a fall in the shower and that a doctor who examined the child said he was in fine condition. Later that day, defendant went to work and once again left the child in Flint's care. That evening, when Flint arrived with the child to pick defendant up from work, he told her that he could not wake the child. Defendant took the child out of the car and when she found that he was limp and having difficulty breathing, she called 911 and drove to the hospital. After the child had been transferred to Albany Medical Center, the Department of Social Services filed an emergency application in Family Court to remove the child from defendant's care and, in connection with that proceeding, at approximately 3:25 P.M. on November 14, 2007, defendant was assigned legal counsel. It was later that same day that the child was removed from life support and succumbed to his injuries.

The postmortem examination established that the child had sustained numerous blunt force injuries to his head and face, abrasions across his neck and bite marks on both arms.*fn2 X rays revealed that the child had numerous fractures to his ribs, some of which had occurred as long ago as four weeks prior to his death and were in various stages of healing. In addition, it was confirmed that the child's liver had been lacerated and that there had been a substantial accumulation of blood in and around his brain. The cause of death was established as cerebral edema and subdural hemorrhage with a subarachnoie hemorrhage due to closed head injuries.

After the child's death, defendant was brought to police headquarters where, for a second time, she was read her Miranda warnings and, once again, agreed to provide the police with a written statement regarding the circumstances surrounding her son's death. In this statement, defendant repeated much of what she had previously told the police regarding what had transpired in the days leading up to her son's death but, for the first time, claimed that when she had arrived home on the evening of November 12, 2007 and saw the child's injuries, she attempted to bring him to a local hospital, but Flint prevented her. She stated that she believed Flint would hurt her if she pressed the issue and did not seek medical treatment for the child at that time because she was afraid of how Flint would react if he were ultimately found to be responsible.*fn3 Shortly after providing this statement, defendant was arrested and subsequently charged by indictment*fn4 with two counts of manslaughter in the second degree (counts 6 and 7), reckless endangerment in the first degree (count 8) and endangering the welfare of a child (count 9). After a jury trial, defendant was convicted of each count and sentenced to an aggregate prison term of 7a to 22 years.

Defendant now appeals.

Preliminarily, defendant argues that once she was assigned counsel in the Family Court removal proceeding, any statement she subsequently made to the police should have been suppressed as having been taken in violation of her constitutional right to counsel. We disagree. While the criminal investigation and the Family Court removal proceeding "arise out of the same matrix, they are unrelated in that the [Family Court] proceeding was a civil proceeding focusing on the children, whereas the purpose of this action was to secure a criminal conviction against defendant" (People v Kent, 240 AD2d 772, 773 [1997], lvs denied 90 NY2d 1012 [1997], 91 NY2d 875 [1997]; see People v Roselle, 84 NY2d 350, 355 [1994]; People v Smith, 62 NY2d 306, 314-315 [1984]; People v Snyder, 221 AD2d 870, 871 [1995], lv denied 88 NY2d 885 [1996]). Since the Family Court proceeding was civil in nature, the assignment of counsel in that proceeding did not automatically trigger defendant's right to counsel in the criminal investigation that was being conducted to determine the cause of her son's death.*fn5

As for the statements that were admitted into evidence at trial, we note that defendant was not in custody when, prior to her son's death, she was first interviewed by the police at the hospital or later that same evening when she agreed to accompany them to the police department to give a statement (see People v Pouliot, 64 AD3d 1043, 1046 [2009]; People v Baggett, 57 AD3d 1093, 1095 [2008]; People v Ward, 42 AD3d 579, 580 [2007], lv denied 9 NY3d 883 [2007]). As for her two written statements, each was taken only after defendant was properly advised of her Miranda rights, agreed to waive her constitutional rights, and volunteered to talk to police as to the circumstances surrounding her son's hospitalization and subsequent death (see People v Ward, 42 AD3d at 580; People v Maddox, 31 AD3d 970, 973 [2006], lv denied 7 NY3d 868 [2006]). Therefore, we conclude that County Court correctly denied her motion to suppress and properly admitted these statements into evidence at trial.

Defendant also contends that her convictions for manslaughter in the second degree and reckless endangerment in the first degree were not based upon legally sufficient evidence and were against the weight of the evidence introduced at trial. As for her claim of legal sufficiency, we note that a criminal conviction will be sustained as being supported by legally sufficient evidence "when the proof, viewed in the light most favorable to the prosecution, establishes the elements of the crime beyond a reasonable doubt" (People v Baker, 4 AD3d 606, 609 [2004], lvs denied 2 NY3d 795 [2004]; see People v Barreto, 64 AD3d 1046, 1048 [2009]). Here, defendant stands convicted of two counts of manslaughter in the second degree, the first alleging conduct that occurred between November 11, 2007 and November 14, 2007, while the second focused on a continuing course of conduct that occurred from October 1, 2007 until the date of the child's death. Count 6, as amplified by the bill of particulars, alleges that defendant, despite being aware that the child had been seriously injured while in Flint's care on November 12, chose not to seek medical care for the child and, as a result, he died. Defendant contends that the evidence at trial introduced on this charge failed to establish that she was aware of the true extent of her son's injuries when she first learned of his fall in the shower and, as a result, could not have known the mortal risk those injuries posed to his health and well-being prior to taking him to a nearby hospital. She also argues that even if it were proven that she was truly aware of the seriousness of those injuries on the night of November 12, it was not established at trial that these injuries actually caused his death.

While it is undisputed that defendant, after being told by Flint of the incident in the shower, observed that the child had bruises and abrasions on his head, face and body, it was not established at trial that, based upon these observations, she knew that the child had sustained life-threatening injuries that would ultimately cause death. In fact, upon the child's admission to the hospital, his internal injuries -- the cranial bleeding, the lacerated liver and fractured ribs -- were only detected after multiple X rays were performed and blood tests were conducted by hospital personnel. In addition, the medical examiner testified that the internal injuries that caused the child's death were only detected upon his internal inspection of the child's remains during the postmortem examination. Equally important, while the medical examiner ultimately concluded that death was the result of trauma to the child's head, he was unable, based on his examination, to precisely pinpoint the period in time when the trauma resulting from these injuries was inflicted upon the child and could only offer an opinion that these injuries occurred at any time "within four days [prior to his death]." As a result, the evidence at trial failed to establish, as this count in the indictment required, that defendant was aware that her son had been gravely injured as a result of the fall in the shower (see Penal Law § 15.05 [3]; § 125.15 [1]; People v Wong, 81 NY2d 600, 608 [1993]; People v Northrup, 83 AD2d 737, 738 [1981]), or that the injuries that he incurred as a result of ...


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