Opinion
360 KA 18-00165
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Wayne A. BABB, Jr., Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAIXI XU OF COUNSEL), FOR DEFENDANT-APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAIXI XU OF COUNSEL), FOR DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of endangering the welfare of a child ( Penal Law § 260.10 [1] ), defendant contends that the conviction is based on legally insufficient evidence. We reject that contention. Defendant's girlfriend left her three-year-old son in his care while she was at work from 7:00 a.m. until 4:00 p.m. She testified at trial that the child had no injuries of concern when she left for work, but there were red marks on the child's face when she returned home for lunch and, later that evening, she discovered that the child's testicles were red. The girlfriend's testimony is sufficient to establish that the child sustained the injuries while in defendant's care (see People v. Tompkins , 8 A.D.3d 901, 902-903, 780 N.Y.S.2d 387 [3d Dept. 2004] ). Moreover, the medical evidence contradicted defendant's explanations for how the child sustained the injuries (see People v. Wright , 81 A.D.3d 1161, 1163, 918 N.Y.S.2d 598 [3d Dept. 2011], lv denied 17 N.Y.3d 803, 929 N.Y.S.2d 112, 952 N.E.2d 1107 [2011] ). We thus conclude that " ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ " ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although defendant challenges the credibility of his girlfriend's testimony, we conclude that " ‘the jury was in the best position to assess the credibility of the witness[ ] and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded’ " ( People v. McCall , 177 A.D.3d 1395, 1396, 112 N.Y.S.3d 846 [4th Dept. 2019], lv denied 34 N.Y.3d 1130, 118 N.Y.S.3d 509, 141 N.E.3d 465 [2020] ).
Insofar as defendant contends that the verdict is inconsistent, we reject his contention. Although the jury acquitted him of assault in the second degree ( Penal Law § 120.05 [9] ) and forcible touching (§ 130.52 [1] ), those crimes require that the defendant act intentionally (§ 15.05 [1] ), whereas endangering the welfare of a child requires only that the defendant act knowingly (§ 15.05 [2]; see § 260.10 [1] ; People v. Fernandez , 126 A.D.3d 639, 639, 5 N.Y.S.3d 436 [1st Dept. 2015], lv denied 26 N.Y.3d 967, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] ).
Defendant further contends that County Court erred in permitting the testimony of a Child Protective Services investigator concerning a finding of abuse or neglect with respect to the same incident that was entered upon defendant's consent pursuant to Family Court Act § 1051 (a). We reject that contention. Consent to such an order is analogous to an Alford plea (see Matter of William N. [Kimberly H.] , 118 A.D.3d 703, 705, 987 N.Y.S.2d 406 [2d Dept. 2014] ; Matter of Christopher H. v. Lisa H. , 54 A.D.3d 373, 373, 863 N.Y.S.2d 67 [2d Dept. 2008] ), which "binds [a defendant] as strongly as any admission of the facts constituting the crime charged" ( Matter of Cumberland Pharmacy v. Blum , 69 A.D.2d 903, 903, 415 N.Y.S.2d 898 [2d Dept. 1979] ). Thus, testimony concerning the disposition of the Family Court proceeding was properly received in evidence against defendant (see People v. Smielecki , 77 A.D.3d 1420, 1421, 908 N.Y.S.2d 485 [4th Dept. 2010], lv denied 15 N.Y.3d 956, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ; see generally Matter of Aaron H. [Barbara H.] , 72 A.D.3d 1602, 1602, 898 N.Y.S.2d 901 [4th Dept. 2010], lv denied 15 N.Y.3d 704, 2010 WL 3397045 [2010] ).
Although we agree with defendant that the prosecutor's comment in summation concerning defendant's pretrial silence was improper (see generally People v. Conyers , 52 N.Y.2d 454, 457-458, 438 N.Y.S.2d 741, 420 N.E.2d 933 [1981] ), we conclude that it was " ‘not so egregious as to deprive defendant of a fair trial’ " ( People v. Jones , 155 A.D.3d 1547, 1549, 64 N.Y.S.3d 803 [4th Dept. 2017], amended on rearg 156 A.D.3d 1493, 65 N.Y.S.3d 820 [4th Dept. 2017], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 205, 122 N.E.3d 1118 [2019] ). By failing to object to the other allegedly improper comments by the prosecutor during summation, defendant failed to preserve the remainder of his contention for our review (see People v. Simmons , 133 A.D.3d 1227, 1228, 18 N.Y.S.3d 808 [4th Dept. 2015] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).