Opinion
2013-08744
06-03-2015
The PEOPLE, etc., respondent, v. Richard LEAK, appellant.
Clinton W. Calhoun III, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Clinton W. Calhoun III, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered August 13, 2013, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was arrested in connection with the death of his two-year-old son. After trial, he was convicted of manslaughter in the first degree under Penal Law § 125.20(4).
Contrary to the defendant's contention, a recording of a 911 call made by the child's mother, as well as testimony regarding her phone call to a neighbor seeking help for the child, were properly admitted into evidence as excited utterances. Excited utterances are exceptions to the hearsay rule because they “are the product of the declarant's exposure to a startling or upsetting event that is sufficiently powerful to render the observer's normal reflective processes inoperative” (People v. Vasquez, 88 N.Y.2d 561, 574, 647 N.Y.S.2d 697, 670 N.E.2d 1328 ; see People v. Cantave, 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257 ). “ ‘The essential element’ of this hearsay exception ‘is that the declarant spoke while under the stress or influence of the excitement caused by the event, so that his reflective capacity was stilled’ ” (People v. Cantave, 21 N.Y.3d at 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257, quoting People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109 ).
Here, while the mother was not present at the apartment when the child was injured, when she made the subject calls she had just received a phone call informing her that the child was not breathing. According to the mother's testimony, she was “in shock” when she called her neighbor seeking help. She called 911 minutes later after learning that the neighbor's help had not changed the situation. On the recording of the 911 call she can be heard crying, and she was clearly distraught. Accordingly, the Supreme Court properly determined that, when the mother called the neighbor and 911 for help, she was under the stress of the excitement caused by the event and not capable of studied reflection (see People v. Bonds, 118 A.D.3d 717, 719, 987 N.Y.S.2d 428 ; People v. Jones, 79 A.D.3d 1244, 1247, 912 N.Y.S.2d 746 ; People v. Hawkins, 193 A.D.2d 758, 598 N.Y.S.2d 72 ).
The defendant contends that the Supreme Court erred in denying his request to charge the jury with manslaughter in the second degree (Penal Law § 125.15 [1 ] ) as a lesser-included offense of manslaughter in the first degree of a person less than 11 years old (Penal Law § 125.20[4] ). However, since it is theoretically possible to commit the crime of manslaughter in the first degree pursuant to Penal Law § 125.20(4) without also committing the crime of manslaughter in the second degree (see People v. James, 70 A.D.3d 1052, 895 N.Y.S.2d 519 ; People v. Mora, 57 A.D.3d 571, 868 N.Y.S.2d 722 ; People v. Heslop, 48 A.D.3d 190, 195, 849 N.Y.S.2d 301 ; People v. Robinson, 278 A.D.2d 798, 723 N.Y.S.2d 277 ), the Supreme Court properly denied the request (see CPL 1.20[37] ; People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).