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People v. Ash

Supreme Court of New York, Third Department

June 21, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
CONNOR L. ASH, Appellant.

          Calendar Date: May 3, 2018

          Brian M. Quinn, Albany, for appellant.

          Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

          Before: McCarthy, J.P., Devine, Clark, Aarons and Pritzker, JJ.

          MEMORANDUM AND ORDER

          Aarons, J.

         Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered April 7, 2016, upon a verdict convicting defendant of the crimes of assault in the second degree and endangering the welfare of a child.

         In January 2015, defendant's son (hereinafter the victim), who was almost three months old at the time, sustained a fracture of his right femur after defendant, who was 19 years old at the time, forcefully picked him up by the leg as the victim was lying in a swing. In connection with this incident, defendant was charged by indictment with assault in the second degree and endangering the welfare of a child. Following a jury trial, defendant was convicted as charged and thereafter sentenced to an aggregate prison term of seven years, to be followed by three years of postrelease supervision. County Court also issued an eight-year order of protection in favor of the victim. Defendant appeals. We affirm.

         Defendant's challenge with respect to the legal sufficiency of the evidence is not preserved for our review in light of his failure to renew his motion to dismiss at the close of all proof (see People v Lane, 7 N.Y.3d 888, 889 [2006]; People v Spencer, 152 A.D.3d 863, 863 [2017], lv denied 30 N.Y.3d 983');">30 N.Y.3d 983');">30 N.Y.3d 983');">30 N.Y.3d 983 [2017]; People v Pine, 126 A.D.3d 1112, 1114 [2015], lv denied 27 N.Y.3d 1004');">27 N.Y.3d 1004 [2016]). Defendant, however, also contends that the verdict was against the weight of the evidence and, therefore, we consider the evidence adduced with respect to each element of the challenged crimes (see People v Ruiz, 148 A.D.3d 1212, 1215 n [2017], lv denied 30 N.Y.3d 983');">30 N.Y.3d 983');">30 N.Y.3d 983');">30 N.Y.3d 983 [2017]; People v Williams, 138 A.D.3d 1233, 1234 [2016], lvs denied 28 N.Y.3d 932, 939 [2016]). Where, as here, a different outcome would not have been unreasonable, we "weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (People v Danielson, 9 N.Y.3d 342, 348 [2007]; see People v Mould, 143 A.D.3d 1186, 1186 [2016], lv denied 28 N.Y.3d 1187');">28 N.Y.3d 1187 [2017]).

         As relevant here, assault in the second degree requires that the People prove that defendant, being 18 years old or older, caused physical injury to a person less than seven years old with the intent to do so (see Penal Law § 120.05 [9]). With respect to the endangering the welfare of a child charge, the People must establish, as relevant here, that defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child less than 17 years old (see Penal Law § 260.10 [1]).

         The trial testimony reveals that the victim lived in a three-bedroom apartment with his mother and defendant, who were not married to each other, and his maternal grandparents, among others. The mother testified that defendant watched the victim during the day while the mother worked. On the morning in question, the mother fed him a bottle in their bedroom before she left for work. The victim then went back to sleep, and the mother stated that she did not notice any injuries or bruises on the victim's legs at that time. The mother woke up defendant so that he could watch the victim, and she was driven to work by the victim's grandfather at approximately 9:45 a.m.

         The victim's grandmother testified that she woke up around 10:00 a.m. While in the kitchen, the grandmother heard the victim crying loudly and she saw defendant in the living room holding the victim. The grandmother took the victim from defendant and tried to calm him. The grandfather returned approximately 40 minutes after he left, and he testified that the grandmother was holding the victim, who was "putting up a good cry." The grandmother continued to soothe the victim, but, when she shifted or repositioned him, he started crying again. Both the grandfather and the grandmother noticed that the victim's right leg was swollen. The grandfather testified that the victim's leg was "a little bit of purplish" and that his cry was not his normal cry.

         The victim was then taken to the hospital, and a physician who treated the victim testified that the victim had a "transverse, dislocated, comminuted femur fracture" in his right leg. The physician also stated that the sustained injuries were consistent with a "traumatic blow" and not with a fall from a bed or changing table. The emergency department physician who saw the victim likewise testified that the victim was not capable of causing the sustained injuries on his own and that she was concerned that the injuries resulted from nonaccidental trauma. The emergency department physician also stated that when she examined the victim, his right leg was swollen and "did not look right." A physician assistant who treated the victim testified that the victim's X ray showed an "angulated fracture of the femur, approximately 40 degrees of angulation." The physician assistant further stated that the mechanism of injury was "consistent with force being applied to the posterior bottom of the thighbone in an upward fashion." The physician assistant added that the amount of applied force must have been "fairly significant."

         A deputy sheriff questioned defendant about the victim's injuries. Defendant told the deputy sheriff that, as he was warming a bottle, the victim was yelling and crying at him as he was lying in a swing. Defendant became "very agitated" and was irritated that the victim would not stop crying. According to the deputy sheriff, defendant stated that he then "grabbed the child pretty forcefully, " at which point the victim cried harder. In his voluntary statement to the deputy sheriff, defendant confirmed that he grabbed the upper part of the victim's right leg with his left hand and "grabbed him forcefully with [his] left hand while picking him up." A sergeant testified that he interviewed defendant and was told by defendant that the victim was yelling nonstop as he was warming a bottle. Defendant told the sergeant that he would become unreasonably upset when babies cried. The sergeant stated that when he asked defendant about the victim's injury, defendant responded that he may have squeezed the victim's leg and that he had picked up the child "aggressively because he was upset that the [victim] was crying."

         The People also introduced into evidence thousands of pages showing messages sent by defendant through Facebook to numerous people. Scattered among these pages were conversations that defendant had with other women in which he would flirt with them, some of which took place shortly after the time the victim was injured. In some messages, defendant also referred to the victim as an "asshole" or a "demon, " that "children make [him] so ...


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