THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. REBECCA WALTER DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting her upon a jury verdict of assault in the third degree (Penal Law § 120.00[2] ) and endangering the welfare of a child (§ 260.10[1] ).   We note at the outset that, contrary to the People's contention, this appeal has not been rendered moot by the fact that defendant has completed serving her sentence (see People v. Maraj, 44 AD3d 1090, 1091;  People v. De Leo, 185 A.D.2d 374, 375, lv denied 80 N.Y.2d 974).

Defendant contends that there is insufficient evidence of a physical injury to support a conviction of assault in the third degree.   We reject that contention.   The evidence at trial established that the 14–month–old victim sustained a physical injury, i.e. “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ), inasmuch as the wound on his shoulder caused “more than slight or trivial pain” (People v. Chiddick, 8 NY3d 445, 447).   Defendant also contends that there was insufficient evidence to support her conviction of assault in the third degree and endangering the welfare of a child inasmuch as the People failed to establish that defendant caused the child's injury.   We reject that contention.   Based upon the evidence at trial, there was a valid line of reasoning and permissible inferences to lead a rational person to the conclusion that defendant caused the child's injury (see People v. Watson, 269 A.D.2d 755, 755–756, lv denied 95 N.Y.2d 174;  see generally People v. Tompkins, 8 AD3d 901, 902–903).   Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).

We reject defendant's contention that County Court erred in allowing the prosecutor to introduce evidence that defendant previously pleaded guilty to assault in the third degree after she broke the same victim's femur.   That evidence was “admissible to negate the defense of accident or mistake” (People v. Riley, 23 AD3d 1077, 1077, lv denied 6 NY3d 817;  see People v. Henson, 33 N.Y.2d 63, 72–73;  People v. Sachs, 15 AD3d 1005, 1006, lv denied 5 NY3d 768).

Finally, defendant's contention that the prosecutor engaged in misconduct during summation by making a statement that shifted the burden of proof to defendant is without merit.   We conclude that the allegedly improper statement was merely fair comment on the evidence (see People v. Anzalone, 70 AD3d 1486, 1487, lv denied 14 NY3d 885;  People v. Anderson, 52 AD3d 1320, 1321, lv denied 11 NY3d 733).

Frances E. Cafarell

Clerk of the Court