by the defendant, by permission, from an order of the County
Court (Jeffrey G. Berry, J.), dated January 12, 2015, and
entered in Orange County, which denied, without a hearing,
her motion pursuant to CPL 440.10 to vacate a judgment of the
same court rendered October 17, 2012, convicting her of
endangering the welfare of a vulnerable elderly person, or an
incompetent or physically disabled person, in the first
degree, upon her plea of guilty, and imposing sentence.
Larkin, Ingrassia & Brown, LLP, Newburgh, NY (John
Ingrassia and Charis Orzechowski of counsel), for appellant.
M. Hoovler, District Attorney, Goshen, NY (Robert H.
Middlemiss of counsel), for respondent.
M. LEVENTHAL, J.P., SHERI S. ROMAN, SYLVIA O. HINDS-RADIX,
VALERIE BRATHWAITE NELSON, JJ.
OPINION & ORDER
November 23, 2011, a severely disabled child was admitted to
Westchester Medical Center suffering from what appeared to be
scald burns. The defendant, a licensed practical nurse who
had given the child a bath earlier that day, was subsequently
charged with several crimes on the theory that she had burned
the child with hot water. The defendant thereafter pleaded
guilty to endangering the welfare of a vulnerable elderly
person, or an incompetent or physically disabled person, in
the first degree, admitting that she had recklessly caused
serious physical injury to the child. Nearly two years later,
the defendant moved pursuant to CPL 440.10 to vacate her
conviction, primarily alleging that she was actually innocent
because medical evidence established that the child's
injuries had been caused by an adverse reaction to
medications. The main question we are called upon to
determine is whether the defendant's plea of guilty is an
absolute bar to her maintaining an actual innocence claim
pursuant to CPL 440.10(1)(h). We answer this question in the
A. (hereinafter the child) was born in May 2001. She had
profound disabilities. As of November 2011, the child had a
permanent tracheostomy and feeding tube, was completely
immobile, was blind, and was dependent on others for all
activities of daily living. She required 10 to 20 hours of
nursing care each day. Home care nurses were responsible for
maintaining the child's tracheostomy and feeding tube,
bathing her, moving her, feeding her, and giving her
November 23, 2011, the child was seen by her pediatrician and
then taken to Westchester Medical Center (hereinafter WMC)
for further treatment. The child had erythema, meaning
redness, and bullae, meaning blisters, on her thighs, groin,
and under her arms. The blisters had developed over a number
of hours. Subsequently, the child underwent wound debridement
and skin grafting before being discharged from WMC on January
the Orange County Child Abuse Task Force investigated the
incident. On November 30, 2011, the defendant, a licensed
practical nurse (hereinafter LPN) and the home care nurse
assigned to care for the child, made a statement to an
investigator in which she stated, in part, regarding the date
of the incident:
was working in the... home with [the child] who is disabled
with cerebral palsy, scoliosis and who is also nonverbal. I
arrived about 8:15 that morning and sometime around noon [the
child's] mother, and her family left to go shopping
leaving only me and [the child] at home. Sometime around 3
p.m., I carried [the child] into the main bathroom where I
normally bathe her. I placed [the child] into the bathtub and
onto her bath bed which is made up of a mesh like material. I
then undressed [the child], covering her trachea and turned
on the water and started rinsing her body. I put the soap on
the wash cloth and put the shower handle down in the tub and
then washed [the child] with the wash cloth. After I washed
her, I rinsed her body again to get the soap off. I was then
playing with her hair and rinsing her body and as I moved the
water up her body to wash her hair, the water hit my hand and
I could feel that the water was very hot. I then turned the
cold water on to try to adjust it so it wasn't so hot and
then I continued to bathe [the child] and wash her hair. I
wrapped [the child] in a towel and took her to her bed and
when I pulled the towel down to put lotion on her arms and
help her stretch and when I opened the towel more I noticed
redness and peeling on her legs. I knew then that I had
burned [the child] because the water was too hot when I was
bathing her. I then called [the child's] mother... and
told her that I had just given [the child] a bath and that
her skin was red and peeling and [the child's mother]
said that her skin does that sometimes. I asked her what I
should put on it and she told me to use baby lotion. Just
before 5 p.m. [the child's parents] came home and when
they saw [the child], [the child's mother] said that the
peeling [the child] had was not what she thought I meant when
I told her about it on the phone. [The child's mother]
called the pediatrician and made an appointment to have [the
child] checked out right away and they asked me to go with
them to the doctor's office and I did. I knew that I had
burned [the child] with the hot water when I called [the
child's mother] earlier but was afraid to tell her about
what happened when I was bathing her earlier in the
same day, the defendant wrote a letter to the child's
am truly sorry about [the child]. I would never hurt her.
When I called you to tell you her skin was peeling I was
afraid. When you said her skin does that I was relieved and
thought everything was OK. I did not want to think I can burn
her and believed the doctor when he said this is probably an
infection or result of antibiotics. I realize now I believed
this because I wanted to.
try to put myself in your position and it scares me more. I
have been praying for her and your family everyday. It's
hard to forgive myself for such an accident and even thought
about ending my nursing career and doing something else. I am
writing you this because I feel ashamed that a nurse can make
such a mistake and I wish I was more responsible that day and
I owe you an explanation."
February 2012, the child's mother, individually and as
the child's parent and natural guardian, commenced an
action against the defendant and the defendant's
employer, Interim Healthcare of Greater New York (hereinafter
Interim), to recover damages for personal injuries.
indictment dated April 5, 2012, the defendant was charged
with assault in the second degree, endangering the welfare of
a vulnerable elderly person, or an incompetent or physically
disabled person, in the first degree, endangering the welfare
of a vulnerable elderly person, or an incompetent or
physically disabled person, in the second degree (two
counts), endangering the welfare of a child, and assault in
the third degree (two counts). The criminal charges were
based on the theory that the defendant had either recklessly
or with criminal negligence caused injury to the child.
of Conviction upon the Defendant's Plea of Guilty
24, 2012, the defendant entered a plea of guilty to one count
of endangering the welfare of a vulnerable elderly person, or
an incompetent or physically disabled person, in the first
degree (Penal Law § 260.34), in full satisfaction of
the indictment. At the plea proceeding, the defendant
admitted that on November 23, 2011, she was the caregiver for
an incompetent or physically disabled person, namely, the
child, and that she recklessly caused serious physical injury
to the child. The plea proceeding included the following
COURT: And the People maintain that that bath water that you
eventually placed [the child] in was way too hot, and it
scalded and burned her. Do you understand that?
DEFENDANT]: Yes, sir.
COURT: And it is my question to you: Did you test that bath
water, like you would under all circumstances, you know, to
make sure that it was a proper temperature for bathing a
person like that?
DEFENDANT]: Yes. When I tested it, it was not that hot.
COURT: Did you test it when it was finished?' is my
an off-the-record discussion between the defendant and her
attorney, the following colloquy took place:
DEFENDANT]: Yes, sir.
COURT: And the People maintain that the water was too hot,
and that the child was burned. What degree burns did she
PROSECUTOR]: Third degree burns.
COURT: Do you understand that, third degree?
COURT: Quite obviously, in order for that child to have been
burned to that degree, the water had to be hotter than it
should have been. Do you understand that?
COURT: Did you make an error when you were testing that water
in trying to determine whether it was the proper temperature
level for this child?
COURT: And do you realize that that is acting in a reckless
manner? Do you understand that?
COURT: And that, by doing that, you recklessly caused these
burns to the child. I take it that she was burned on the legs
and on the buttocks and that area?
PROSECUTOR]: Yes, your Honor.
COURT: Do you ...