People v. Hawkins-Rusch
212 A.D.2d 961 Page 1
212 A.D.2d 961, 623 N.Y.S.2d 465
(Cite as: 212 A.D.2d 961, 623 N.Y.S.2d 465)
People v. Hawkins-Rusch
N.Y.A.D. 4 Dept.,1995.
Supreme Court, Appellate Division, Fourth Department, New York.
PEOPLE of the State of New York, Respondent,
v.
Lisa HAWKINS-RUSCH, Appellant.
Feb. 3, 1995.
Defendant was convicted in the Ontario County Court, Henry, J., of criminally negligent homicide in death of her 13-month-old adopted daughter and sentenced to one and one-half to fours years' imprisonment.
Defendant appealed. The Supreme Court, Appellate Division, held that:
(1) evidence supported conviction;
(2) evidence of daughter's prior injuries was admissible to prove intent and to negate defense of accident or mistake; and
(3) sentence was neither harsh nor excessive.
Affirmed.
Headnotes
[1] Homicide 203 1135
203 Homicide
203IX Evidence
203IX(G) Weight and Sufficiency
203k1133 Homicide in General
203k1135 k. Intent or Mens Rea. Most Cited Cases
(Formerly 203k255(1))
Evidence supported defendant's conviction of criminally negligent homicide in death of her 13-month-old adopted daughter; evidence established that daughter's injuries were inflicted in brief period when defendant was alone with her, and experts testified that daughter's injuries were characteristic of shaken baby syndrome and could not be explained as accidental.
[2] Criminal Law 110 369.2(4)
110 Criminal Law
110XVII Evidence
110XVII(F) Other Offenses
110k369 Other Offenses as Evidence of Offense Charged in General
110k369.2 Evidence Relevant to Offense, Also Relating to Other Offenses in General
110k369.2(3) Particular Offenses, Prosecutions for
110k369.2(4) k. Assault, Homicide, Abortion and Kidnapping. Most Cited Cases
Criminal Law 110 371(4)
110 Criminal Law
110XVII Evidence
110XVII(F) Other Offenses
110k371 Acts Showing Intent or Malice or Motive
110k371(4) k. In Prosecutions for Homicide. Most Cited Cases
Evidence of prior injuries sustained by child who died as result of shaken baby syndrome was admissible in defendant's murder prosecution both to prove intent and to negate defense of accident or mistake.
[3] Criminal Law 110 863(.5)
110 Criminal Law
110XX Trial
110XX(J) Issues Relating to Jury Trial
110k863 Instructions After Submission of Cause
110k863(.5) k. In General. Most Cited Cases
Supplemental instruction regarding jury's consideration of prior-injury evidence was not required in defendant's prosecution for murder of her 13-month-old adopted daughter when jury sought to report partial verdict acquitting defendant of higher counts of murder; proof of prior injuries sustained by daughter remained relevant to refute defense of accidental injury and to establish defendant's criminal negligence.
[4] Homicide 203 1566
203 Homicide
203XIV Sentence and Punishment
203k1565 Extent of Punishment in General
203k1566 k. In General. Most Cited Cases
(Formerly 203k354(1))
Sentence of one and one-half to fours years' imprisonment for defendant convicted of criminally negligent homicide in death of her 13-month-old adopted daughter was neither harsh nor excessive.
**466 Melvin Bressler, Rochester, for appellant.
R. Michael Tantillo, Canandaigua, for respondent.
Before *962 DENMAN, P.J., and BALIO, FALLON,
CALLAHAN and DAVIS, JJ.
*961 MEMORANDUM:
Defendant appeals from a judgment convicting her of criminally negligent homicide as a lesser included offense of depraved indifference murder and intentional and reckless manslaughter. Defendant contends that the circumstantial evidence was insufficient to prove that she killed her 13-month-old adopted daughter; that the court erroneously admitted evidence of prior injuries to the child and failed to give a proper limiting instruction; and that the sentence of 1 1/3 to four years is harsh or excessive.
[1] Viewing the evidence in the light most favorable to the People and indulging all reasonable inferences in their favor, we conclude that the jury's verdict is rationally supported by the evidence (see, People v. Williams, 84 N.Y.2d 925, 620 N.Y.S.2d 811, 644 N.E.2d 1367; People v. Wong, 81 N.Y.2d 600, 608, 601 N.Y.S.2d 440, 619 N.E.2d 377; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The proof that the baby was in generally good health prior to 4:00 P.M. on September 25, 1992, and fatally injured no later than 4:38 P.M., establishes that the injuries were inflicted in the brief period when defendant was alone with the child (see, People v. Williams, supra). The People's experts established that, given the severity of the injuries, they could not have been inflicted prior to 4:00 P.M., and that the symptoms displayed by the child at 4:38 P.M. would have occurred within minutes of the infliction of the injuries. Experts for both the People and defendant testified that the injuries were characteristic of shaken baby syndrome and could not be explained as accidental.
[2][3] The court did not err in allowing the People to present evidence of the child's prior injuries. Such proof was admissible to prove intent and to negate the defense of accident or mistake (see,
People v. Williams, supra; People v. Henson, 33
N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358;
People v. Wilcox, 194 A.D.2d 820, 821, 599
N.Y.S.2d 131). We reject defendant's contention that the court should have given a supplemental instruction further limiting the jury's consideration of that evidence after the jury sought to report a partial verdict acquitting defendant of the higher counts. Defendant did not seek further limiting instructions and thus has failed to preserve that issue for review (see,CPL 470.05[2] ). In any event, the proof of prior injuries remained relevant to refute the defense of accidental injury and establish defendant's criminal negligence (see, People v. Henson, supra, 33 N.Y.2d at 68-69, 71, 73, 349 N.Y.S.2d 657, 304 N.E.2d 358).
[4] We have considered the challenge to the severity of defendant's sentence and conclude that it is without merit. Judgment unanimously affirmed.
N.Y.A.D. 4 Dept.,1995.
People v. Hawkins-Rusch
212 A.D.2d 961, 623 N.Y.S.2d 465