People v. Northrup

a.m., when she attempted to wake him, she found him rigid and dead. Her efforts to revive him were unsuccessful. A jabbing blow to the child’s abdomen had ruptured the small bowel, resulting in toxemia and death. At issue is whether defendant, whose culpable conduct consisted of her failure to obtain medical attention for her son, was properly convicted of murder in the second degree. Subdivision 2 of section 125.25 of the Penal Law provides that a person may be convicted of second degree murder when: “Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” Depraved indifference to human life is characterized by unmitigated wickedness, extreme inhumanity, or actions exhibiting a high degree of wantonness (see People v Kibbe, 35 NY2d 407 ; People v Poplis, 30 NY2d 85 ; People v Jernatowski, 238 NY 188 ). The evidence here simply does not justify concluding that defendant participated in a depraved homicide. In fact, she was not even charged with having taken part in the beating. Her culpability stems not from a callous attack on the helpless infant, but from what she failed to do following that attack. An essential element of murder in the second degree is a showing that the defendant acted “recklessly”. To uphold the conviction on the basis of defendant’s conduct subsequent to the attack, it must be established beyond a reasonable doubt that she was aware of the risk to her son’s life if she did not promptly obtain medical aid, yet, knowing full well the probable consequences of her failure to do so, she acted in conscious disregard of that risk, thereby causing the boy’s death (Penal Law, § 15.05, subd 3). Evidence is lacking that this 23-year-old woman, without medical training or knowledge, was cognizant of that risk and consciously disregarded it. Although the external injuries were serious, Chad ceased crying and walked about without complaining shortly after Utter left. Particularly noteworthy is the fact that the injury causing his death was an internal one, not detectable from observing the boy’s body. In our view, this record does' not support a finding that defendant acted recklessly. Since reckless conduct is also a requisite for manslaughter in the second degree, one of the lesser included offenses which was charged, defendant’s conviction of that crime must likewise be ruled out. The record does, however, support a finding of guilt of the lesser included charge of criminally negligent homicide, for defendant’s failure to perceive that there was a substantial and unjustifiable risk Chad would die was a gross deviation from the standard of care a reasonable parent would have exercised in this situation (Penal Law, §§ 125.10, 15.05, subd 4; People v Henson, 33 NY2d 63 ). As the jury’s verdict necessarily included such a finding, modification of the judgment to reflect a conviction on this lesser included offense is appropriate (People v Dlugash, 41 NY2d 725 ; CPL 470.15, subd 2, par [a]). While the various errors ascribed by defendant are either harmless or of insufficient merit to warrant reversal, two bear comment. Prior to her detention in this case, defendant had been assignéd counsel on a misdemeanor charge. Allegedly, she had been driving a motor vehicle without insurance in contravention of subdivision 1 of section 319 of the Vehicle and Traffic Law. She contends that People v Kazmarick ( 52 NY2d 322 ) requires suppression of incriminating statements she made to the police authorities, after waiving her Miranda rights, since they were made in the absence of counsel representing her in that motor vehicle matter. We believe otherwise, for here there has been no showing that the police who questioned her had actual knowledge counsel had been assigned on the outstanding charge. Moreover, that charge was not such a serious transgression of our criminal law that the interrogating officers were obliged to inquire whether

she was indeed represented by an attorney in that case (cf. People v Bartolomeo, 53 NY2d 225 ). Seizure by the police of the bloodied stick used to beat Chad, along with certain other items found in defendant’s house trailer, was not made pursuant to a valid search warrant, nor was it justified under any exception to the general rule that warrantless searches are unreasonable. Admission of that evidence, though illegally seized, was harmless, for there was overwhelming proof of defendant’s guilt of the crime of criminally negligent homicide. Judgment modified, on the law and the facts, by reducing the conviction of murder in the second degree to á conviction of criminally negligent homicide, and, as so modified, affirmed; matter remitted to the County Court of Otsego County for resentencing. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.