        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

563
KA 13-00301
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

REBECCA R. WALTER, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (GARY MULDOON OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered May 23, 2012. The judgment convicted defendant,
upon a jury verdict, of assault in the third degree and endangering
the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of assault in the third degree (Penal Law §
120.00 [2]) and endangering the welfare of a child (§ 260.10 [1]).    We
note at the outset that, contrary to the People’s contention, this
appeal has not been rendered moot by the fact that defendant has
completed serving her sentence (see People v Maraj, 44 AD3d 1090,
1091; People v De Leo, 185 AD2d 374, 375, lv denied 80 NY2d 974).

     Defendant contends that there is insufficient evidence of a
physical injury to support a conviction of assault in the third
degree. We reject that contention. The evidence at trial established
that the 14-month-old victim sustained a physical injury, i.e.
“impairment of physical condition or substantial pain” (Penal Law
§ 10.00 [9]), inasmuch as the wound on his shoulder caused “more than
slight or trivial pain” (People v Chiddick, 8 NY3d 445, 447).
Defendant also contends that there was insufficient evidence to
support her conviction of assault in the third degree and endangering
the welfare of a child inasmuch as the People failed to establish that
defendant caused the child’s injury. We reject that contention.
Based upon the evidence at trial, there was a valid line of reasoning
and permissible inferences to lead a rational person to the conclusion
that defendant caused the child’s injury (see People v Watson, 269
AD2d 755, 755-756, lv denied 95 NY2d 174; see generally People v
Tompkins, 8 AD3d 901, 902-903). Contrary to defendant’s further
                                 -2-                           563
                                                         KA 13-00301

contention, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s contention that County Court erred in
allowing the prosecutor to introduce evidence that defendant
previously pleaded guilty to assault in the third degree after she
broke the same victim’s femur. That evidence was “admissible to
negate the defense of accident or mistake” (People v Riley, 23 AD3d
1077, 1077, lv denied 6 NY3d 817; see People v Henson, 33 NY2d 63, 72-
73; People v Sachs, 15 AD3d 1005, 1006, lv denied 5 NY3d 768).

     Finally, defendant’s contention that the prosecutor engaged in
misconduct during summation by making a statement that shifted the
burden of proof to defendant is without merit. We conclude that the
allegedly improper statement was merely fair comment on the evidence
(see People v Anzalone, 70 AD3d 1486, 1487, lv denied 14 NY3d 885;
People v Anderson, 52 AD3d 1320, 1321, lv denied 11 NY3d 733).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
