People v. Lilly , 422 N.Y.S.2d 976 ( 1979 )

OPINION OF THE COURT

Per Curiam.

Defendant was convicted of murder in the second degree, resulting from the child abuse death of a three-month-old child. The prosecution proceeded upon two theories: (1) defendant’s own conduct evincing a depraved indifference to human life, resulted in the child’s death; and (2) defendant aided and abetted the child’s mother to bring about the death of the child. The jury’s verdict of guilty does not show upon which theory the verdict was based.

Defendant contends that the trial court failed to instruct the jury properly concerning defendant’s duty toward the deceased child. The court instructed the jury that, if it found that defendant, the child’s mother and the child were living together as a family unit, defendant had a duty to provide medical assistance to the child. This is an oversimplification of the in loco parentis doctrine, which requires that an individual intend to assume all the obligations of parenthood before he will be held to those obligations (Rutkowski v Wasko, 286 App Div 327), and the jury’s fruitless request for clarification on that issue indicates this confusion. We hold that this constitutes reversible error.

In deciding this case, three questions must be answered; (1) did the defendant inflict injuries on the baby; (2) did these injuries cause death; and (3) were the injuries inflicted with "criminal negligence” (Penal Law, § 15.05, subd 4; § 125.10); or "recklessly” (Penal Law, § 15.05, subd 3; § 125.15, subd 1); or "recklessly”, "[ujnder circumstances evincing a depraved indifference to human life” (Penal Law, § 125.25, subd 2).

The record reveals that from a time prior to the birth of Vickie Lynn Area the defendant and Janet Area, Vickie Lynn Area’s mother, lived together as a family in all but name. The defendant contributed financially to this social unit and he fed, handled and "disciplined” the baby. He testified that it had been his intention to marry Janet Arca and adopt her child. On July 24, 1977 this infant died of various injuries. Approximately one month before on June 26, 1977, she had been examined at a local hospital and found to be a healthy, thriving infant. After her death a visual inspection of the infant’s body showed numerous bruises, puncture wounds, lacerations on her back and hemorrhages and the subsequent autopsy revealed multiple injuries to her head, body, extremities and brain. The condition of the injuries indicated that they had been inflicted over a period of several days or weeks.

At the trial, the defendant attempted to place the blame for the murder of Vickie Lynn Area on the shoulders of Janet Area. He denied ever having struck the infant, even though he had previously made a written statement in which he admitted that he had slapped her on the back and head. An eyewitness, Roger Whitmoyer, stated that during some of this period he lived with the defendant and had seen him slap the then three-month-old infant. The defendant denied that this was true. However, the defendant’s landlady, Mrs. Talbot, testified that from 50 feet away during late June and early July, while sitting outside her trailer, she had heard the baby cry followed by the defendant’s voice yelling "cut it out, cut it out, cut it out” and then heard the sounds of hard slaps. The defendant’s response to this testimony was that the crying sound was from his dog. The slaps, he said, were inflicted on Janet Area as part of an esoteric birthday ritual. The jury rejected his denials and explanations; nor was it necessary for the jury to make any impermissible leap of logic, to conclude that the defendant inflicted these injuries and that these injuries did cause the death of Vickie Lynn Area. While circumstantial, in part, the proof was strong. Child beating ordinarily goes on behind closed doors and avoids the light of day. Since these incidents occur in the privacy of the home the facts are not easy to unravel. Consequently, proof in a battered baby’s death will ordinarily be circumstantial in nature (People v Caprio, 47 AD2d 1), which is sometimes stronger than direct evidence (People v Benzinger, 36 NY2d 29, 32).

We come then to the final question of what was the defendant’s intent or state of mind. The circumstantial evidence of his state of mind must come from the nature, extent and frequency of the injuries and whatever might be gathered from defendant’s admissions. Examining the injuries suffered by this baby as set forth in the record, we find that she had bruises ranging from old (brownish) to new (blue) on her face, jawbone, front anterior chest and back anterior chest; that the infant’s left radius had been fractured and that the fracture could have been at least two weeks old because partial healing had begun; X rays showed multiple fractures on both sides of the baby’s rib cage—some of the fractures on the right side were found to be old because, they, like the left radius, were partially healed; there were gouges on both sides of the baby’s jawbone consistent with adult thumbnail gouges which were "crusted” or partially healed; there were multiple hemorrhages in the tissues beneath the skin of the scalp and that some of the hemorrhages were no more than 48 hours old; there was a large subdural hemmorhage over the right side of the brain; and the injuries to the brain occurred at different points in time.

These injuries were inflicted on a six and one-half pound baby girl by grown persons over a period of about a month (June 26-July 24). No medical attention was sought to ease the substantial pain the infant was undeniably undergoing. It is difficult for us to conclude, as does the dissent, that this evidence supports an inference that the inflictor of these fatal wounds acted only negligently or merely recklessly. Rather, we conclude that these vicious and brutal injuries are direct evidence of recklessness sufficient to prove that the death of this infant was caused "[u]nder circumstances evincing a depraved indifference to human life” (Penal Law, § 125.25, subd 2; People v Poplis, 30 NY2d 85). Defendant’s conduct revealed a cruelty and hardness of heart at least as depraved as abandoning an intoxicated robbery victim on a cold snow-swept highway late at night (People v Kibbe, 35 NY2d 407).