PEOPLE v. MORA (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Hinrichs, J.), rendered November 15, 2005, convicting her of murder in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress her statements to law enforcement officials.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, a review of the totality of the circumstances (see People v. Mateo, 2 N.Y.3d 383, 413, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828), demonstrates that her oral and written statements to the police were not involuntarily made (see CPL 60.45[1] ).   According to the testimony adduced at the Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179), the defendant was afforded Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) before giving both her oral and written statements.   An interview of the defendant conducted by a detective occurred during the span of a little more than an hour.   The defendant was provided food and water, permitted to go to the bathroom on several occasions, and was neither threatened nor abused.   While the Spanish-speaking defendant's written statement was transcribed in English by the interviewing detective, the statement was not thereby rendered inadmissible since he read it back to her in Spanish before she signed and adopted the statement as her own (see People v. Fabricio, 307 A.D.2d 882, 883, 763 N.Y.S.2d 619, affd. 3 N.Y.3d 402, 787 N.Y.S.2d 219, 820 N.E.2d 863;  People v. Montero, 273 A.D.2d 128, 709 N.Y.S.2d 552;  People v. Ventura, 250 A.D.2d 403, 404, 673 N.Y.S.2d 106;  see also People v. Buckley, 299 A.D.2d 417, 750 N.Y.S.2d 617).   Accordingly, that branch of the defendant's omnibus motion which was to suppress her oral and written statements to police was properly denied (see People v. Elliott, 39 A.D.3d 663, 834 N.Y.S.2d 260;  People v. Sanchez, 212 A.D.2d 744, 623 N.Y.S.2d 156;  People v. Sohn, 148 A.D.2d 553, 556-557, 539 N.Y.S.2d 29).

The trial court providently exercised its discretion in permitting the People to conduct a Powerpoint presentation illustrating and demonstrating the injuries and mechanics associated with Shaken Baby Syndrome (see People v. Yates, 290 A.D.2d 888, 889-890, 736 N.Y.S.2d 798).   As the trial court correctly concluded, the probative value of the presentation outweighed its prejudicial effect (see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728;  People v. Acevedo, 40 N.Y.2d 701, 704, 389 N.Y.S.2d 811, 358 N.E.2d 495).   Moreover, any resultant prejudice was minimized by the court's limiting instruction to the jury (see People v. Yates, 290 A.D.2d at 890, 736 N.Y.S.2d 798).

The defendant also contends that the trial court improvidently exercised its discretion in permitting an expert witness to shake his coat in order to demonstrate the amount of force necessary to inflict Shaken Baby Syndrome.   However, the defendant's contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Herr, 203 A.D.2d 927, 928, 611 N.Y.S.2d 389, affd. 86 N.Y.2d 638, 635 N.Y.S.2d 159, 658 N.E.2d 1032).   In any event, the trial court providently exercised its discretion in permitting such a demonstration (see People v. Kendall, 254 A.D.2d 809, 810, 678 N.Y.S.2d 182).

 The defendant contends that it was error for the trial court to deny her request to charge manslaughter in the second degree (Penal Law § 125.15) and criminally negligent homicide (Penal Law § 125.10) as lesser included offenses of depraved indifference murder of a person less than 11 years old (Penal Law § 125.25[4] ).   However, viewed in the abstract (see People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376), it is theoretically possible to commit the crime of depraved indifference murder under Penal Law § 125.25(4) without committing the crime of manslaughter in the second degree (see CPL 1.20[37];  People v. Ramirez, 55 N.Y.2d 708, 710, 447 N.Y.S.2d 138, 431 N.E.2d 623;  People v. Heslop, 48 A.D.3d 190, 193-196, 849 N.Y.S.2d 301;  People v. Robinson, 278 A.D.2d 798, 723 N.Y.S.2d 277).   With respect to the defendant's contentions concerning criminally negligent homicide, there was no reasonable view of the evidence that supported a finding that her conduct fell within the definition of each of the elements of that crime (see CPL 300.50[1];  People v. Abreu-Guzman, 39 A.D.3d 413, 413-414, 835 N.Y.S.2d 90;  People v. Singleton, 272 A.D.2d 561, 562, 708 N.Y.S.2d 880, 881;  People v. Thomches, 172 A.D.2d 786, 569 N.Y.S.2d 158).

The defendant's generalized motion to dismiss made at the conclusion of the People's case was insufficient to preserve her challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Rivera, 38 A.D.3d 1289, 834 N.Y.S.2d 913).   In any event, 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 (see People v. Goodridge, 251 A.D.2d 85, 674 N.Y.S.2d 24;  People v. Jones, 236 A.D.2d 217, 218, 653 N.Y.S.2d 323).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, 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;  People v. Goodridge, 251 A.D.2d 85, 674 N.Y.S.2d 24;  People v. Jones, 236 A.D.2d 217, 653 N.Y.S.2d 323).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).