Opinion
1083 KA 15-01059.
10-06-2017
The PEOPLE of the State of New York, Respondent, v. Jessica N. COURTEAU, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of Counsel), for Defendant–Appellant.
Lori Pettit Rieman, District Attorney, Little Valley, for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a jury verdict of endangering the welfare of a child ( Penal Law § 260.10[1] ). The conviction arises out of defendant's conduct in connection with a traumatic brain injury sustained by an 18–month–old child when the child was in defendant'scare. The jury acquitted defendant of the more serious charges of assault in the first degree (§ 120.10[3] ), reckless assault of a child (§ 120.02[1] ) and reckless endangerment in the first degree (§ 120.25).
Defendant's challenge to the legal sufficiency of the evidence supporting the child endangerment charge is not preserved for our review because she made only a general motion for a trial order of dismissal with respect to that charge (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is against the weight of the evidence. In reviewing the weight of the evidence we must determine in the first instance whether, "based on all the credible evidence[,] a different finding would not have been unreasonable" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). "Where, as here, an acquittal would not have been unreasonable, we ‘must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions' " ( People v. Dean, 70 A.D.3d 1193, 1194, 894 N.Y.S.2d 596, quoting Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). In performing our weight of the evidence review, moreover, we may consider the jury's acquittal on the other counts in the indictment (see People v. Rayam, 94 N.Y.2d 557, 563 n., 708 N.Y.S.2d 37, 729 N.E.2d 694 ; People v. O'Neil, 66 A.D.3d 1131, 1134 n. 2, 887 N.Y.S.2d 705 ; People v. Ross, 62 A.D.3d 619, 619, 881 N.Y.S.2d 397, lv. denied 12 N.Y.3d 928, 884 N.Y.S.2d 710, 912 N.E.2d 1091 ). Based on the weight of the credible evidence, we conclude that the jury was justified in finding defendant not guilty of those counts charging her with recklessly engaging in conduct that caused the child's injury or created a grave risk of death to the child, while at the same time finding her guilty of the count charging her with "knowingly act[ing] in a manner likely to be injurious to the physical ... welfare of [the] child" ( Penal Law § 260.10[1] ). Specifically, the jury was justified in finding that the evidence established that the seriousness of the child's condition was apparent to defendant, and that her failure to take appropriate action amounted to knowingly acting in a manner likely to be injurious to the child (see People v. Keegan, 133 A.D.3d 1313, 1316, 20 N.Y.S.3d 796, lv. denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 ; People v. Brandi E., 105 A.D.3d 1341, 1343, 964 N.Y.S.2d 355, lv. denied 22 N.Y.3d 1154, 984 N.Y.S.2d 638, 7 N.E.3d 1126 ; People v. Lewis, 83 A.D.3d 1206, 1207, 920 N.Y.S.2d 846, lv. denied 17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 ).
Defendant failed to preserve for our review her contention that the prosecutor, during summation, improperly urged the jury to speculate concerning defendant's mental state at the time that the child was in her care (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 ). In any event, even assuming that the prosecutor's comment was improper, we conclude that it was not so egregious that it deprived defendant of a fair trial (see People v. Griffin, 125 A.D.3d 1509, 1511, 4 N.Y.S.3d 434 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.