PEOPLE v. OWENS (2001)

Judgment, Supreme Court, New York County (Harold Beeler, J.), rendered July 22, 1997, convicting defendant, after a jury trial, of criminally negligent homicide and endangering the welfare of a child, and sentencing him to concurrent terms of 1 1/313 to 4 years and 1 year, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility.   There was overwhelming evidence that defendant's four-month-old daughter died as a result of defendant's failure to provide her with medical treatment (see, People v. Henson, 33 N.Y.2d 63, 68–71, 349 N.Y.S.2d 657, 304 N.E.2d 358).   The credible testimony of the clinic personnel established that defendant ignored their repeated warnings that the baby had a 104 degree temperature, was gravely ill and required immediate hospitalization, and that defendant falsely informed the clinic personnel that the baby had been taken to the hospital.

The court properly denied defendant's application to dismiss the indictment, since there was no showing that the integrity of the Grand Jury proceeding had been impaired (see, CPL 210.35[5];  People v. Darby, 75 N.Y.2d 449, 554 N.Y.S.2d 426, 553 N.E.2d 974).   The prosecutor's cross-examination of defendant before the Grand Jury was generally appropriate and there were no improprieties rising to the level that would warrant dismissal of the indictment.

 The court properly admitted evidence that defendant was the father of 12 children, since the probative value of defendant's experience as a parent and familiarity with childhood illnesses outweighed any prejudicial impact, which was prevented by the court's limiting instructions.

The prosecutor's summation remarks were fair comment on the evidence and proper responses to the defense summation (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).