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People v. Tiger

Supreme Court of New York, Second Department

March 1, 2017

The People of the State of New York, respondent,
v.
Natascha Tiger, appellant. Ind. No. 12-00215

         APPEAL 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.

          David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.

          JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, VALERIE BRATHWAITE NELSON, JJ.

          OPINION & ORDER

          LEVENTHAL, J.P.

         On 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 negative.

         Incident

         Alejandra 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 medications.

         On 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 3, 2012.

         Meanwhile, 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:

         "I 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 day."

         That same day, the defendant wrote a letter to the child's mother, stating:

         "I 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.

         "I 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."

         In 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.

         In an 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.

         Judgment of Conviction upon the Defendant's Plea of Guilty

         On July 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[2]), 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 discussion:

         "THE 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?

         "[THE DEFENDANT]: Yes, sir.

         "THE 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?

         "[THE DEFENDANT]: Yes. When I tested it, it was not that hot.

         "THE COURT: Did you test it when it was finished?' is my question."

         After an off-the-record discussion between the defendant and her attorney, the following colloquy took place:

         "[THE DEFENDANT]: Yes, sir.

         "THE COURT: And the People maintain that the water was too hot, and that the child was burned. What degree burns did she sustain?

         "[THE PROSECUTOR]: Third degree burns.

         "THE COURT: Do you understand that, third degree?

         "[THE DEFENDANT]: Yes.

         "THE 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?

         "[THE DEFENDANT]: Yes.

         "THE 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?

         "[THE DEFENDANT]: Yes.

         "THE COURT: And do you realize that that is acting in a reckless manner? Do you understand that?

         "[THE DEFENDANT]: Yes.

         "THE 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?

         "[THE PROSECUTOR]: Yes, your Honor.

         "THE COURT: Do you ...


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