State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 106479 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

GARY L. WAITE,

Appellant.

________________________________

Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

__________

David M. Abbatoy Jr., Rochester, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee

B. Davenport of counsel), for respondent.

__________

Garry, J.P.

Appeal from a judgment of the County Court of Warren County

(Hall Jr., J.), rendered December 12, 2013, upon a verdict

convicting defendant of the crimes of murder in the second

degree, manslaughter in the second degree and endangering the

welfare of a child.

Defendant's 15-month-old child sustained fatal head

injuries while he was in defendant's exclusive care. Defendant

was thereafter charged with murder in the second degree,

manslaughter in the second degree and endangering the welfare of

a child. In March 2012, the People moved to disqualify

defendant's two retained attorneys due to a conflict of interest. 

One of the attorneys withdrew and, following a hearing, County

Court disqualified the second attorney with defendant's consent. 
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Thereafter, defendant's new attorney advised the court that he

had previously represented the child's mother. At a hearing, the

mother testified that she had shared information with this

counsel that she considered to be secret. Counsel objected to

disqualification, and defendant stated that he was willing to

waive the potential conflict of interest, but the court

nevertheless deemed counsel to be disqualified and assigned a

fourth attorney to represent defendant. Thereafter, the court

granted defendant's motion to dismiss the charge of murder in the

second degree on the ground that there was insufficient evidence

to establish depraved indifference. Upon the People's appeal,

this Court reversed and reinstated the charge (108 AD3d 985, 987

[2013]). Following a jury trial, defendant was convicted as

charged and sentenced to an aggregate prison term of 25 years to

life. Defendant appeals.

Defendant contends that the evidence of indifference and

recklessness was legally insufficient to support his conviction

for depraved indifference murder. As for indifference, the

People were required to show that defendant's mens rea when the

crime occurred was one of "an utter disregard for the value of

human life – a willingness to act not because one intends harm,

but because one simply doesn't care whether grievous harm results

or not" (People v Suarez, 6 NY3d 202, 214 [2005]; see People v

Feingold, 7 NY3d 288, 296 [2006]). The People established at

trial that defendant was alone with the child from approximately

11:00 a.m. to 6:00 p.m., at which point his sister arrived, found

the child unresponsive and directed defendant to call 911. 

Defendant initially told police that the child had fallen off a

couch and cut his lip between 2:00 p.m. and 3:00 p.m., that he

called a friend who often helped him care for the child for

advice, and that she told him not to seek medical assistance yet

and to keep the child awake. After the child fell, according to

defendant, he played with a stuffed animal and later watched

television while seated in a chair, getting up a few times to

come over to defendant. 

Defendant told police that shortly before 6:00 p.m., the

child stood up, fell forward and hit his face on a metal chair. 

He stated that the child was bleeding and gasping for air, and

his eyes were rolling back in his head. Defendant called the
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friend and his mother to tell them that the child was "hurt bad,"

and they dispatched his sister to his home. He stated that he

did not call for medical assistance because "[he] was panicking

and [emergency personnel] wouldn't have understood [him]." 

Later that evening, defendant amended his statement,

acknowledging that he had not previously told the police the full

truth. He stated that the child cried for 20 or 30 minutes after

the initial fall from the couch. When the child "wouldn't stop

bugging out," defendant became frustrated and "tossed" him to the

other end of the couch; the child bounced off and his head hit

the hardwood floor. According to defendant, the child then

"mellowed out" and "looked tired and not like [he] usually

act[ed]." In a separate conversation that same evening,

defendant told an emergency room nurse that the child "wasn't

acting right" after he fell out of a chair, and that he heard the

child "make a weird noise and was moving weird." The nurse

testified that, based upon defendant's description and

demonstration, she identified the strange sound as agonal

breathing and the unusual movements as posturing, both of which

were signs of severe brain injury. 

The uncontradicted testimony of the People's medical

witnesses challenged the credibility of defendant's explanations

for the child's catastrophic head injuries, which included a

fractured skull, a subdural hematoma and severe swelling of the

brain. The treating emergency room physician, the medical

examiner and a pediatric neurosurgeon opined that these injuries

could not have resulted from falling or bouncing off a couch or

chair. Instead, such injuries were caused by significant force,

such as that of a car crash or a fall from an upper story; the

emergency room physician testified that he had seen comparably

severe injuries caused, in one case, by an elevator that fell on

a child's head and, in another, by a collapsing gravestone. The

medical testimony further called into question defendant's claim

that the child was able to play, watch television, stand up and

walk after the initial injury. The physicians opined that the

child probably never regained consciousness; if he did so

briefly, he would have been in severe pain and would quickly have

become unresponsive and then comatose. The medical examiner

testified that the child's increasing lethargy and
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unresponsiveness – caused by the swelling of his brain as time

passed – would have been "very obvious" to an average layperson. 

He further testified that several injuries on the child's face,

arms and legs – which included facial bruises consistent with

being punched in the eye, other bruises on his face and upper

thighs, a bruise on his arm consistent with being grabbed, and a

facial laceration that would have required sutures if he had

survived – had occurred contemporaneously but could not all have

resulted from a single blow. The neurosurgeon testified that the

time interval between the infliction of these injuries and the

arrival of medical assistance could have been up to three hours.

This evidence was supplemented by the testimony of two

neighbors who heard a loud banging sound in defendant's apartment

that afternoon. One neighbor, who lived below defendant's

apartment, said that the sound was so loud that it frightened his

children. The other neighbor, who was outside, stated that he

heard a loud bang as if "someone was carrying a couch and dropped

it on a wooden floor" followed by a scream like "a terrifying kid

in anguish" that was not a child's normal cry. Thereafter, he

heard more bangs, interrupted by crying and screaming that

indicated to him that a child "was being hurt." After a total of

seven or eight bangs, the child made no more sounds. 

Taken as a whole, the jury could rationally have concluded

that defendant brutally assaulted the child because he did not

stop crying after the initial, relatively minor fall from the

couch. This attack occurred – by defendant's own account –

sometime between approximately 2:30 p.m. and 3:30 p.m. The jury

could further have concluded that defendant's failure to seek

medical assistance for the child during the hours that followed –

despite his admitted awareness that the child was behaving

abnormally and his knowledge of "the brutal origin of the

injuries and the force with which they were inflicted" –

displayed the wanton, uncaring mental state that constitutes

depraved indifference (People v Barboni, 21 NY3d 393, 402 [2012];

see People v Nelligan, 135 AD3d 1075, 1077-1078 [2016], lv denied

27 NY3d 1072 [2016]; People v Keegan, 133 AD3d 1313, 1316 [2015],

lv denied 27 NY3d 1152 [2016]; People v Johnson, 127 AD3d 451,

451-452 [2015], lv denied 26 NY3d 1009 [2015], cert denied ___ US

___, 136 S Ct 1669 [2016]; People v Griffin, 48 AD3d 1233, 1235
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[2008], lv denied 10 NY3d 840 [2008]; People v Ford, 43 AD3d 571,

573-574 [2007], lv denied 9 NY3d 1033 [2008]; see also People v

Dallas, 119 AD3d 1362, 1365-1366 [2014], lv denied 24 NY3d 1083

[2014]). 

Contrary to defendant's argument, the fact that he called

and texted a friend several times during the afternoon for advice

on caring for the injured child does not require a different

conclusion. The uncontradicted evidence established that

defendant dissembled the circumstances and the child's condition

in these communications, failing to tell the friend that anything

more serious than falling off the couch had happened to the child

or that his behavior was unusual. The jury could reasonably have

concluded that defendant was seeking to minimize the gravity of

the child's condition rather than genuinely attempting to obtain

assistance, and that his intent was to protect himself rather

than the child. As we said when this case was previously before

us, "a defendant who inflicts severe injuries upon a child and

then attempts to weave a story over several hours to save himself

while the child suffers is hardly less callously indifferent to

the child's life than one who waits and eventually

dispassionately reports the child's condition" (108 AD3d at 987). 

Further, the fact that defendant was panic-stricken and

distraught by the time he finally did summon aid does not alter

the case. The People were required to show that defendant had

the necessary mens rea of callous indifference when the crime

occurred, not at all times thereafter. The jury could rationally

have concluded that he had the requisite mental state of callous

indifference during the attack and the period in which he failed

to seek medical assistance or tell the truth to his friend about

the child's condition, and that he did not become distraught

until he realized that the grievous harm he had inflicted could

not be concealed (compare People v Barboni, 21 NY3d at 402).

Defendant next contends that the severity of the child's

injuries established that he acted with an intent to kill and

that the People therefore failed to prove that he acted with the

recklessness required for a conviction pursuant to Penal Law

§ 125.25 (4). As he concedes, this claim is unpreserved. 

Nevertheless, defendant also asserts that the verdict was against
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the weight of the evidence, which requires this Court to

determine whether each element of the charged crimes was proven

beyond a reasonable doubt (see People v Danielson, 9 NY3d 342,

348-349 [2007]; People v Harden, 134 AD3d 1160, 1160 [2015], lv

denied 27 NY3d 1133 [2016]). Upon review, we find no merit in

the claim. The gravity of the injuries sustained by this

vulnerable 15-month-old child, without more, does not establish

that "[defendant] intended to cause death or serious physical

injury, in the sense of having that as a conscious objective or

purpose" (People v Barboni, 21 NY3d at 404). Defendant did not

use a gun or other means that inherently suggest an intent to

kill (see id.), nor was there proof that he had "any motive,

animosity or ill-will" that might have led him to form the

purpose of killing the child (People v Bowman, 48 AD3d 178, 182

[2007], lv denied 10 NY3d 808 [2008]; accord People v Griffin, 48

AD3d 1233, 1235 [2008], lv denied 10 NY3d 840 [2008]). We find

that the verdict was not against the weight of the evidence.1

Finally, defendant's contention that County Court abused

its discretion by disqualifying his counsel is unavailing. 

Initially, the record belies defendant's contention that the

court failed to inform him that he could waive the conflict

created by the fact that his second attorney had previously

represented a potential trial witness. Instead, the court

plainly advised defendant that he could continue to be

represented by this counsel if he so chose, although also noting

that counsel had advised against this course of action, and that

the court agreed it was unwise. Defendant's response – that he

would accept his counsel's advice and seek new representation by

the Public Defender's office – clearly indicated his

understanding that he had a choice.

As for the disqualification of the third attorney, "[a]

criminal defendant's right to counsel of his or her choice is not

1 We reject defendant's alternative argument that his

counsel was ineffective for failing to preserve the intent issue,

as failing to pursue a meritless claim does not constitute

ineffective assistance (see People v Kindred, 100 AD3d 1038, 1041

[2012], lv denied 21 NY3d 913 [2013]). 
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absolute and may properly be circumscribed where defense

counsel's continued representation of the defendant would present

a conflict of interest" (People v Robinson, 121 AD3d 1179, 1180

[2014]). When a conflict exists, a court must balance the

defendant's constitutional right to the effective assistance of

counsel against his or her right to be represented by the counsel

of his or her choice, and the decision may be challenged on

constitutional grounds no matter which alternative it selects

(see People v Watson, 26 NY3d 620, 624 [2016]; People v

Carncross, 14 NY3d 319, 327 [2010]; People v Gomberg, 38 NY2d

307, 312-313 [1975]). As it is particularly difficult to predict

the potential implications of a conflict of interest before a

trial, a "court [is] allowed substantial latitude in refusing

waivers of conflicts of interest not only in those rare cases

where an actual conflict may be demonstrated before trial, but in

the more common cases where a potential for conflict exists which

may or may not burgeon into an actual conflict as the trial

progresses" (Wheat v US, 486 US 153, 163 [1988]). 

Here, this counsel's prior representation of the child's

mother was limited to a few brief communications and appearances

in a child support violation proceeding. Counsel stated that he

had learned no confidential information that could affect his

representation, and defendant stated that after discussing the

potential conflict, he was willing to waive it. However, the

mother testified that she had shared information with counsel

that she considered to be secret, and she refused to waive the

confidentiality of this information or agree to counsel's

representation of defendant. She further stated that she was

already uncomfortable about the prospect of testifying as a

hostile witness at the trial and that counsel's continued

representation of defendant would make this more difficult for

her. In light of all the circumstances, and particularly

considering the unknown nature of the confidential information

that the mother had provided and the concomitant difficulty of

predicting its potential impact upon the trial, disqualification

of this counsel was "a proper exercise of [County Court's] broad

discretion" (People v Robinson, 121 AD3d at 1180; see People v

Watson, 26 NY3d at 625-626; People v Carncross, 14 NY3d at 330;

People v Gordon, 272 AD2d 133, 134 [2000], lv denied 95 NY2d 890

[2000]; see also People v Hall, 46 NY2d 873, 874-875 [1979], cert
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denied 444 US 848 [1979]).

Egan Jr., Rose, Devine and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court