PEOPLE v. MOORE

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Dejon MOORE, Appellant.

-- December 05, 2013

Before: ROSE, J.P., LAHTINEN, GARRY and EGAN JR., JJ. Catherine A. Barber, Albany, for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 25, 2009, upon a verdict convicting defendant of the crime of reckless assault of a child.

Two months after defendant began dating the codefendant, Kansinya Lewis, her 11–month–old daughter was found to be unresponsive, clenching her fists in pain, bruised, unable to hold her head up and with her eyes rolled back in her head. The child was transported to the hospital where emergency room staff determined that she had suffered a traumatic brain injury. When later questioned by police, defendant admitted that he shook the baby earlier that day because she was crying, he was angry that Lewis was sleeping and not attending to the child, and he could not take it anymore. Defendant was thereafter charged with assault in the first degree and reckless assault of a child. After a joint jury trial, he was found guilty of the reckless assault charge. He was sentenced to a prison term of seven years with three years of postrelease supervision, and he now appeals.1

We reject defendant's contention that his repeated motions for severance should have been granted. Lewis' defense, that she did not know what caused the child's injuries, was not “in irreconcilable conflict” with defendant's claims that his statements were involuntary and that the proof was insufficient to establish his guilt (People v. Mahboubian, 74 N.Y.2d 174, 184 [1989]; see People v. Smith, 89 A.D.3d 1126, 1131 [2011], lv denied 18 N.Y.3d 962 [2012]; People v. Cordato, 85 A.D.3d 1304, 1308 [2011], lv denied 17 N.Y.3d 815 [2011] ). Nor did Lewis implicate defendant as the perpetrator or offer any evidence that she had witnessed him express anger toward her children on any occasion.

We find no basis for defendant's claim that his statement to the police was the product of duress (see People v. Snow, 79 A.D.3d 1252, 1255 [2010], lv denied 16 N.Y.3d 800 [2011]; People v. Manos, 73 A.D.3d 1333, 1339 [2010], lv denied 15 N.Y.3d 807 [2010] ). His additional arguments that his statement should have been suppressed because it was not electronically recorded and that the jury should have been given an adverse inference charge based on the lack of a video or audio recording are not preserved for our review (see CPL 470.05[2]; People v. Wolfe, 103 A.D.3d 1031, 1034–1035 [2013], lv denied 21 N.Y.3d 1021 [2013]; People v. Kindred, 100 A.D.3d 1038, 1040 [2012], lv denied 21 N.Y.3d 913 [2013] ). In any event, there is no due process requirement that the statement be electronically recorded (see People v. Beckingham, 57 A.D.3d 1098, 1099–1100 [2008], lv denied 13 N.Y.3d 742 [2009]; People v. Nelson, 52 A.D.3d 534, 535 [2008], lv denied 11 N.Y.3d 739 [2008] ), nor is there any basis for an adverse inference charge to be given (see People v. Rivera, 105 A.D.3d 1343, 1346 [2013], lv denied 21 N.Y.3d 1045 [2013]; People v. McMillon, 77 A.D.3d 1375, 1375 [2010], lv denied 16 N.Y.3d 897 [2011] ).

Defendant's contention that his conviction is not supported by legally sufficient evidence is also without merit. His statement that he shook the child so hard that she “lost her air” on the morning the injuries were discovered puts his actions within the time frame when the medical experts testified that the injuries were inflicted. Defendant also admitted to a child protective services worker that he shook the child, and there was testimony from witnesses that defendant had previously yelled at the child for crying, and would tell the child to “shut the f* * * up.” Evidence that the severity of the child's injuries indicated that they were not caused by shaking alone does not require that defendant's confession be disregarded, but merely provides a basis to infer that defendant did more to the child than he admitted. Viewed in a light most favorable to the People, the evidence provides a valid line of reasoning and permissible inferences on which to conclude that defendant committed the crime of reckless assault of a child (see Penal Law § 120.02 [1]; People v. Danielson, 9 N.Y.3d 342, 349 [2007]; People v. Marsh, 100 A.D.3d 1020, 1020–1021 [2012], lv denied 20 N.Y.3d 1063 [2013] ).

We are also unpersuaded by defendant's contention that Lewis' lack of credibility renders the verdict against the weight of the evidence, inasmuch as the issue of her credibility was fully explored at trial. In any event, given that she did not implicate defendant, any lack of credibility on her part would do nothing to undermine the evidence of his guilt (see People v. Mitchell, 94 A.D.3d 1252, 1253–1254 [2012], lv denied 19 N.Y.3d 964 [2012]; People v. Polomaine, 89 A.D.3d 1215, 1215 [2011], lv denied 18 N.Y.3d 927 [2012] ).

Finally, in light of the heinous nature of this crime against a helpless baby, as well as defendant's history of violent behavior, we find no abuse of discretion by County Court with respect to the sentence and we will not disturb it (see People v. Snyder, 91 A.D.3d 1206, 1215 [2012], lv denied 19 N.Y.3d 968 [2012], cert denied US, 133 S.Ct. 791 [2012]; People v. Mitchell, 289 A.D.2d 776, 780 [2001], lv denied 98 N.Y.2d 653 [2002] ).

ORDERED that the judgment is affirmed.

ROSE, J.P.

LAHTINEN, GARRY and EGAN JR., JJ., concur.

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