In a non-jury trial, the defendant was convicted of predatory sexual assault against a child, two counts of assault in the first degree, two counts of assault in the first degree as a sexually motivated felony, and endangering the welfare of a child. The underlying facts involved defendant forcibly anally sodomizing a nine-month-old infant. Thereafter, in the presence of a witness, he expressed indifference over the infant’s obvious medical needs by failing to seek medical attention. An appeal of the judgment followed with a series of legal contentions from defendant.
The Fourth Department held that repeated statements, indicating that defendant wanted to leave a custodial interrogation with police, were not the functional equivalent of a request for an attorney. Only those statements made after an unequivocal request for counsel can be suppressed. Despite his limited intellect, defendant did unequivocally ask for an attorney later in the interrogation, negating his contention that he did not understand his rights. The police terminated the interrogation thereafter. He also met the constitutional requirements for waiving a jury trial in court and in writing, establishing that he did so knowingly, voluntarily, and intelligently. The trial court did not err in admitting defendant’s statements or accepting the waiver of his rights.
Defendant also averred that he was denied effective assistance of counsel. Viewing the defense counsel’s representation in totality, the court held that defendant failed to show a required lack of an explanation for his counsel’s actions and omissions. His contention ultimately had no merit.
The trial court properly admitted the physical DNA evidence used against defendant at trial. Although the police did not advise him that he could refuse a swab, that fact alone did not automatically refute consent otherwise voluntarily given. Moreover, the DNA in the rape kit that matched defendant’s sample had sufficient reassurances from the police of a proper chain of custody. It was admissible based solely on that reassurance because any allegations of gaps in the chain only went to the rape kit’s probative value at trial.
Defendant successfully argued that the two counts of assault in the first degree were “inclusory” according to CPL 300.30(4). The two counts were lesser offenses that were already included in the two counts of assault in the first degree as a sexually motivated felony. Defendant could not have committed the greater offense of a sexually motivated assault without concurrently committing assault. The Fourth Department reversed the two underlying assault charges because defendant had also been found guilty of the greater offense.
The greater offense of a sexually motivated assault requires a showing that the defendant had a depraved indifference to human life. Defendant argued that this element was not supported by legally sufficient evidence. However, the brutal facts of the case, combined with Dallas’ impassive response to the injuries he inflicted on the victim after the commission of the crime, constituted depravity in the court’s eyes. The prosecution also satisfied the recklessness element because defendant knew the extent of the injuries to the victim and failed to seek medical attention or consult with the people in his vicinity. The court finally concluded that his sentence was not unduly harsh or severe.
989 N.Y.S.2d 206 (4th Dept. 2014)