People v. Castillo , 29 N.Y.S.3d 293 ( 2016 )

Judgment, Supreme Court, New York County (Peter J. Benitez, J.), rendered January 12, 2012, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 18 years, affirmed.

Initially, there was overwhelming evidence supporting the jury’s finding that the attack on May 8, 2009 by defendant and his accomplices was the cause of the victim’s death on May 12, 2009. Eyewitnesses and surveillance video established that they hit the victim repeatedly in the head, including defendant’s assault on him with a tire iron. The victim was also kicked in the face and thrown down an open basement stairway. He suffered severe injuries, specifically a fractured skull with bone fragments pushed into his brain, causing cerebral bleeding and swelling and a lack of oxygen to the brain, from which he died four days later.

The jury appropriately rejected the suggestion of the defense’s expert that the victim had so recovered by his third day in the hospital that his death on the fourth day was caused not by his injuries but by a possible infection of unknown origin or a fall from his bed, since that testimony was unconvincing, if not speculative, particularly in view of the expert’s acknowledgment that the injury was life-threatening and required emergency surgery. In any event, the jury’s finding that the attack caused the victim’s death was warranted by “the rule in New York that ‘[i]f a person inflicts a wound ... in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible’ ” (People v Pratcher, 134 AD3d 1522, 1524 [4th Dept 2015], quoting People v Kane, 213 NY 260, 274 [1915]).

Defendant failed to raise any challenge to the court’s charge regarding causation of death at a time when the court could have easily rephrased the instruction. The issue is therefore unpreserved for appellate review (see CPL 470.05 [2]). The claimed error does not fall within the “very narrow exception” discussed in People v Thomas (50 NY2d 467, 471 [1980]), as the dissent suggests. That narrow exception is only applicable “when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute” (id.). Here, as was the case in Thomas, preservation was necessary because defendant essentially claims that “a portion of the charge could, in the particular case, be interpreted as having a contrary effect” to the burden of proof charge that was correctly stated by the court (id. at 472). Nor is the exercise of interest of justice jurisdiction warranted; defendant was not deprived of a fair trial (see CPL 470.15 [6] [a]). As an alternative holding, we consider the charge, viewed as a whole, to have properly conveyed the law regarding whether the assault was a sufficiently direct cause of the victim’s death (see People v Umali, 10 NY3d 417, 426-427 [2008], cert denied 556 US 1110 [2009]; People v Ladd, 89 NY2d 893, 895 [1996]).

Defendant’s argument that the prosecutor engaged in a pattern of improper remarks which deprived him of a fair trial is similarly unpreserved, as no objection was made at trial to any of the remarks of which he now complains, and we decline to review it in the interest of justice. As an alternative holding, on balance the prosecutor’s remarks did not prejudice defendant, and did not have the cumulative effect of depriving defendant of a fair trial (see People v D’Alessandro, 184 AD2d 114, 119-120 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).

Defendant’s argument that his defense was in conflict with that of his codefendant such that a severance was necessary is also unpreserved, since defendant never sought severance at trial (see People v Bernier, 245 AD2d 137, 138 [1st Dept 1997], lv denied 91 NY2d 940 [1998]), and we decline to review it in the interest of justice. As an alternative holding, this argument lacks merit. The two defendants’ defenses — that one was not there and that the other did not mean to inflict serious injury or death — “were not so irreconcilable as to require severance” (People v Funches, 4 AD3d 206, 207 [1st Dept 2004], lv denied 3 NY3d 640 [2004]). Moreover, since the proof that defendants acted in concert to commit the crimes charged was supplied by the same evidence, a balancing of defendant’s rights against the interest of judicial economy warranted the joint trial (see People v Mahboubian, 74 NY2d 174, 183 [1989]).

Finally, we reject defendant’s contention that his counsel’s failure to preserve the foregoing claimed errors establishes an ineffective assistance claim. The record establishes that defendant’s attorney mounted a competent defense in the face of a difficult case with powerful evidence of his client’s guilt— indeed, defendant’s attorney succeeded in obtaining an acquittal of the charge of second-degree murder, the most serious of the numerous charges — and defendant was not prejudiced by the lack of preservation.

Concur — Friedman, Saxe and Gische, JJ.