                           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
                              -2-                105822

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
                               -3-                105822

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.
                               -4-                105822

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-year-
old 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.
                              -5-                105822

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
