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[971 N.Y.S.2d 730] Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.
Gregory S. Oakes, District Attorney, Oswego, for respondent.
[994 N.E.2d 821] On this appeal, we are called upon to address the impact of this Court's recent jurisprudence concerning depraved indifference to human life, where defendant is accused of repeatedly striking a victim less than 11 years old and failing to summon medical assistance before the child dies. In this case we hold that there was sufficient evidence to convict defendant of depraved indifference murder as well as first-degree manslaughter. We also conclude that County Court committed no reversible error and that defendant's right to [994 N.E.2d 822] [971 N.Y.S.2d 731] effective assistance of counsel was not violated.
The facts pertinent to this appeal are as follows. Shortly after 8 P.M. on August 18, 2008, the mother of a 15-month-old boy received a telephone call from her boyfriend, defendant Barboni. Barboni, who had been alone with the child since around 4:45 P.M., told her, in what was described as a calm tone of voice, that she needed to come home because the child was not breathing. The mother rushed home to find her son in his crib, badly bruised, and unconscious. Defendant denied knowing what had happened. The child was pronounced dead at a nearby hospital shortly thereafter.
Defendant was interviewed that night at the police station. He had no explanation for the child's death, and could not
account for reddish stains that the police observed on his clothing. At approximately 1:20 A.M., an attorney called the police station, and questioning stopped. The attorney spoke with defendant, and then with the investigator, who asked for defendant's clothes. Both the attorney and defendant consented, and the clothing was then subjected to forensic analysis.
Defendant was arrested and charged with murder in the second degree (Penal Law § 125.25 ) and manslaughter in the first and second degrees (Penal Law §§ 125.20; 125.15 ). As part of his omnibus motion, submitted by new defense counsel, defendant sought suppression of the clothing taken from him at the station house, arguing that the seizure violated his right to counsel. Following a hearing, County Court denied the motion, reasoning that the police legitimately concluded that defendant was acting on the advice of counsel when he consented to the seizure of his clothing. Defendant then proceeded to a jury trial in County Court.
During voir dire, one prospective juror indicated that he was unsure whether he would apply a different, more favorable standard with respect to the credibility of testimony by police officers when it directly conflicted with civilian testimony. Neither the prosecution nor the defense challenged this prospective juror for cause. When County Court asked the attorneys to state their peremptory challenges, defense counsel displayed a moment's uncertainty concerning whether this prospective juror had already been challenged. Informed that he was still unchallenged, counsel said, " Then we are fine ... we are going to keep him. I'm sorry, I got my people mixed up." County Court reminded counsel that the prospective juror was the one who " was unsure." " I know that," counsel responded, " I wanted to keep him. I just confused myself." The prospective juror was seated and served throughout the trial.
At trial, the jury heard evidence from three police officers regarding their questioning of defendant and his inability to explain the stains on his clothing. Forensic scientists testified that the stains on defendant's clothing were positive for blood, and that the blood matched the child's DNA.
The jury heard extensive testimony concerning the autopsy. A medical examiner testified that the child had approximately 25 " fresh" injuries, including two " clusters" of injuries to the face. The child had suffered four distinct skull fractures. The
examiner opined that the child's injuries had been caused by " blunt force trauma," involving a minimum of " five strikes" or " impacts."
[971 N.Y.S.2d 732] [994 N.E.2d 823] An ocular pathologist, who had examined the child's eyes during a postmortem examination, testified that his eye injuries were consistent with " vigorous shaking with or without impact." Significantly, a neuropathologist, who had examined the child's brain and spinal cord, opined that he had survived for approximately two hours following onset of the trauma.
The defense called a pediatrician, who was unable to give a precise time as to when the injuries had occurred, but testified that a neuropathologist would be in a better position to do so. The pediatrician opined that signs of the child's extensive bruising would have been recognizable " [w]ithin a half hour" of the traumatic injury, and that he would have been in a substantial amount of pain and probably crying, screaming, or else " lethargic."
Finally, an anatomic pathologist was called by the defense. He opined that the interval between the child's injuries and death was at least two hours; like the pediatrician, he testified that a neuropathologist would be in a better position to give an estimate.
Defendant moved, unsuccessfully, for a trial order of dismissal on all counts. With respect to depraved indifference murder, defense counsel claimed that the People were obliged, but had failed, to prove " that the child was ... likely to die or that the attack was prolonged." He also argued that, if there was sufficient evidence of any type of murder, it could not be depraved indifference murder, because defendant's conduct was " in essence, intentional, not reckless."
Following deliberations, the jury found defendant guilty of one count each of murder in the second degree (Penal Law § 125.25 [depraved indifference murder of a child] ) and manslaughter in the first degree (Penal Law § 125.20 [intent to ...