State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 105822 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

VERONICA L. TAFT,

Appellant.

________________________________

Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Norbert A. Higgins, Binghamton, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton

(Peter N. DeLucia of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the County Court of Broome County

(Cawley, J.), rendered February 26, 2013, upon a verdict

convicting defendant of the crimes of murder in the second

degree, manslaughter in the first degree and endangering the

welfare of a child (three counts).

On December 30, 2010, at approximately 10:00 a.m., police

were dispatched to defendant's residence to respond to a 911

report of a child not breathing. Police and paramedics arrived

at defendant's home to find defendant, her then boyfriend

(hereinafter the boyfriend) and her two-year-old son (hereinafter

the victim), who was unresponsive and without a pulse. When a

responding officer spoke with defendant, defendant told him that,

on the prior evening, she had left her four children in the care
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of the boyfriend before working from 11:00 p.m. to 7:00 a.m. The

victim was rushed to the hospital, where he was eventually

pronounced dead and found to have died due to blunt force impact

trauma to his abdomen that resulted in a torn liver and fatal

internal bleeding. 

In September 2011, defendant was indicted for the crimes of

murder in the second degree (depraved indifference murder of a

child), manslaughter in the first degree and endangering the

welfare of a child (six counts). Following a jury trial,

defendant was convicted of murder in the second degree,

manslaughter in the first degree and endangering the welfare of a

child as it related to confining the victim in a dark room,

hitting and knocking the victim off the couch onto the floor and

forcing the victim's face into a pillow. County Court sentenced

defendant to concurrent prison terms of 25 years to life for the

conviction of murder in the second degree and 25 years for the

conviction of manslaughter in the first degree, to be followed by

five years of postrelease supervision, and concurrent one-year

jail terms for each of the three convictions for endangering the

welfare of a child. Defendant now appeals. 

We agree with defendant that, as to the convictions for

murder in the second degree and manslaughter in the first degree,

the verdict was against the weight of the evidence. Pursuant to

their theory of the case, the People were required to prove

beyond a reasonable doubt that defendant inflicted the trauma

that caused the victim's death (see Penal Law §§ 125.20 [4];

125.25 [4]). In our weight of the evidence analysis, this Court

"sits, in effect, as a thirteenth juror" (People v Cahill, 2 NY3d

14, 58 [2003] [internal quotation marks and citation omitted];

accord People v O'Neil, 66 AD3d 1131, 1132 [2009]). A weight of

the evidence review requires this Court to first determine

whether, "based on all the credible evidence[,] a different

finding would not have been unreasonable" (People v Bleakley, 69

NY2d 490, 495 [1987]). Where a different finding would not have

been unreasonable, we must "weigh the relative probative force of

conflicting testimony and the relative strength of conflicting

inferences that may be drawn from the testimony to determine if

the verdict is supported by the weight of the evidence" (People v

Ramsaran, 141 AD3d 865, 869 [2016] [internal quotation marks and
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citations omitted]). 

The sole scientific evidence that was introduced at trial

indicated that the victim most likely suffered his injuries more

than three hours after defendant had left the victim with the

boyfriend and gone to work. In this regard, the People

introduced the expert testimony of the forensic pathologist who

had conducted an autopsy on the victim. Based on the injuries

that the victim sustained, the pathologist "estimated" that the

victim would have died approximately an hour after his injuries

were inflicted. The pathologist explained that he relied upon

records of the victim's body temperature taken at the hospital to

determine the victim's time of death, and that the victim "most

likely" died at "about 3:00 [a.m.]"1 Considering the foregoing,

the pathologist's calculations indicated that the victim's wounds

were inflicted at approximately 2:00 a.m. – more than three hours

after defendant had left the home and more than five hours before

she returned. 

The boyfriend testified that he did not inflict the wounds

that led to the victim's death and, essentially, that the period

in which he babysat defendant's children was uneventful.2 For

this testimony to be reconcilable with the People's theory of the

case, the boyfriend's supervision of the victim – a two-year-old

infant – had to be so minimal that he was unable to ascertain

that the victim was mortally wounded or deceased during a more

1 Based on questions related to the pathologist's degree of

certainty as to his conclusion, the pathologist testified that it

was "technically possible" that the victim's time of death was

11:00 p.m. and that it was "within the realm of possibility" that

the injuries could have been inflicted at 9:00 p.m. This

scenario, however, would assume a 50% error rate in the time of

death calculation and would have also doubled the amount of time

that it took the victim to die from his injuries.

2 At the time of the victim's death, unrelated assault

charges were pending against the boyfriend.
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than eight-hour period.3 Regarding the night in question, the

boyfriend described cooking dinner for the children as defendant

left for work at approximately 10:45 p.m. He acknowledged that,

shortly after the victim's body was discovered, he had informed

police officers that he had fed the children the evening before;

when specifically asked whether that included the victim, he

responded in the affirmative.4 However, at trial, the boyfriend

testified that, although he had retrieved defendant's youngest

daughter from her crib for dinner, which he described as being

"two feet" from the bunk bed upon which the victim was lying on

the bottom bunk, he "[had]n't take[n] it upon [him]self to wake

[the victim] to eat" and that he had assumed the victim had eaten

because he later found that his plate was empty. Further, the

boyfriend testified to having "tucked in" defendant's three-yearold daughter later that night in the same bottom bunk bed upon

which the victim laid without noticing anything amiss with the

victim. 

During the course of his trial testimony, the boyfriend

acknowledged that, while making a phone call in a police

interview room shortly after the victim's death, he stated, "I

don't know my nigger, this little nigger be running around doing

mad shit." The boyfriend also acknowledged stating to a child

protective services caseworker, "I'm not getting the death

penalty for no accident," but testified that the statement was

taken out of context. Moreover, the boyfriend acknowledged at

trial that he had been offered immunity if he testified against

defendant at the grand jury proceeding – testimony that he

eventually gave. Finally, the boyfriend testified that after the

victim had been found that morning, and while others attempted to

revive him, he had punched a hole in the wall of the apartment. 

3 The boyfriend explained that, when he babysat, he did not

change diapers and that he tasked defendant's four-year-old

daughter with changing the diapers of the victim and defendant's

youngest daughter.

4 According to the People's theory of the case, the victim

would have had to have been either mortally wounded or already

dead at this point in time. 
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The boyfriend had stated the same thing to law enforcement after

a police investigator had noticed injuries to the boyfriend's

knuckles immediately after the victim's death. In addition, a

police investigator examined the wall and concluded that the hole

was unrelated to the victim's injuries. 

Finally, while defendant's previous paramour (hereinafter

the paramour) testified that, on January 10, 2011, defendant

called him at approximately 2:00 a.m. and confessed to having

caused the injuries that led to the victim's death,5 the paramour

did not make this statement to law enforcement until five months

after the victim's death and after he had been arrested on an

unrelated charge of violating an order of protection.6 He

acknowledged that he had reached out to law enforcement after his

arrest because he had information about this case and other cases

and because he hoped "to get the best deal [that he] could." In

initially meeting with law enforcement, the paramour stated that

the boyfriend had confessed to him that he had killed the victim. 

Specifically, the paramour told law enforcement that the

boyfriend told him that he had found out about the paramour's

ongoing sexual relationship with defendant and was upset. The

paramour acknowledged that, on at least four different occasions,

he told law enforcement and/or prosecution officials that the

boyfriend had confessed to killing the victim.

At trial, however, the paramour testified that he had been

lying when he said that the boyfriend confessed to the killing. 

He testified that it was only after a law enforcement officer

confronted him and accused him of lying to protect defendant and

after conferring with his counsel that he had a "sudden epiphany"

5 The paramour acknowledged that he had previously been

convicted of criminal contempt, possession with intent to sell

narcotics, resisting arrest and menacing.

6 The paramour explained that defendant had contacted his

girlfriend, which resulted in an argument between the paramour

and his girlfriend. When police responded, the paramour was

arrested for violating an order of protection that was in effect

that prevented him from having contact with his girlfriend. 
-6- 105822 

and informed the officials that it was actually defendant who

confessed to him. Moreover, the paramour's testimony was often

contradictory and inconsistent. The paramour initially testified

that the only time that defendant acknowledged having injured the

victim was during the January 10, 2011 phone conversation. In

addition, in earlier recorded statements, the paramour had

consistently indicated that defendant had confessed on one

occasion. Later during his trial testimony, however, the

paramour stated that defendant had confessed to him more than

once.7 When cross-examined about these inconsistent statements,

the paramour contended that he had told police about the multiple

confessions but that they must have failed to record that portion

of his statement. 

The paramour also testified that his "intimate"

relationship with defendant had become a "platonic" relationship

by October or November 2010 before contradicting that testimony

with the admission that he continued to have an ongoing sexual

relationship with defendant thereafter. Although the paramour

had told law enforcement that he "didn't speak to [defendant]"

between the alleged January 10, 2011 phone-call confession and

seeing her at a bowling alley in March 2011, he testified at

trial that he had actually been in touch with her "several times"

during that period. The paramour also testified at trial that

defendant had never stated where she kicked the victim, but later

acknowledged having made a statement to law enforcement that

defendant had told him that she had kicked the victim in the

abdomen or chest. Initially during his testimony, the paramour

was adamant that he had told no one, before he told law

enforcement, that defendant had confessed to him. The paramour

7 For example, the paramour testified to an instance in

which he had visited defendant's apartment and she had pointed to

a hole in the wall and explained that it was where she had

slammed the victim. This testimony not only contradicted the

paramour's previous testimony and statements, but it also

contradicted the People's theory of the case, which was that the

hole in the wall was unrelated to the victim's injuries. During

closing argument, the People stated that "we know [the boyfriend]

punched a hole in the wall."
-7- 105822 

later testified that he had told his mother about the confession

and that his prior testimony that he had not told anyone was

incorrect. Moreover, the paramour acknowledged that he had

previously told the police that defendant indicated that she

became upset with the victim on December 29, 2010 in part because

a child protective services caseworker had visited her that day. 

Notably, there was no proof introduced that a caseworker had

visited defendant on the day leading up to the victim's death. 

Weighing the conflicting proof and inferences, we find the

jury's verdict that the proof established beyond a reasonable

doubt that defendant committed murder in the second degree and

manslaughter in the first degree to be against the weight of the

evidence (see People v Wright, 139 AD3d 1094, 1095-1096 [2016],

lv denied 28 NY3d 939 [2016]; People v Graham, 107 AD3d 1296,

1298 [2013]; People v Nisthalal, 87 AD3d 702, 705 [2011]; People

v Grice, 84 AD3d 1419, 1419 [2011], lv denied 17 NY3d 806 [2011];

People v St. Andrews, 82 AD3d 1356, 1358 [2011]; People v

Fortunato, 70 AD3d 851, 852-853 [2010]; People v O'Neil, 66 AD3d

at 1134; People v Madison, 61 AD3d 777, 777-779 [2009]; People v

Jones, 59 AD3d 864, 873 [2009]; People v Zephyrin, 52 AD3d 543,

544 [2008]). Accordingly, we modify the judgment by dismissing

those counts. In contrast, considering the eyewitness testimony

from other witnesses supporting defendant's convictions for

endangering the welfare of a child, we find the remainder of the

verdict to be supported by the weight of the evidence. 

Defendant's remaining contentions have been considered and found

to be without merit. 

Garry, Lynch, Devine and Clark, JJ., concur.
-8- 105822 

ORDERED that the judgment is modified, on the facts, by

reversing defendant's convictions of murder in the second degree

and manslaughter in the first degree under counts 1 and 2 of the

indictment; said counts dismissed and the sentences

imposed thereon vacated; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court