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

642
KA 11-00262
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BARBARA J. HERSHEY, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered December 5, 2007. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence to an indeterminate term of
imprisonment of 2 to 6 years and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of manslaughter in the second degree (Penal Law §
125.15 [1]) for recklessly causing the death of her four-month-old
step-grandson. Viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence. It is undisputed that the victim sustained
subdural hematomas, retinal hemorrhaging and cerebral edema, commonly
referred to as the triad symptoms indicative of Shaken Baby Syndrome
(SBS). The People’s expert witnesses testified that, in the absence
of evidence of external trauma, those symptoms in a baby can be caused
only by shaking the baby with great force. The People’s experts
further testified that there can be no “lucid interval” between the
shaking and the baby’s death or disability. Thus, because the victim
lost consciousness while in the exclusive care of defendant, it was
reasonable for the jury to conclude that defendant shook the victim,
causing his death. Although defendant’s experts challenged the
validity of SBS, it cannot be said on this record that the jury failed
to give the evidence the weight it should be accorded (see generally
People v Bleakley, 69 NY2d 490, 495). “ ‘Where, as here, there was
conflicting expert evidence concerning criminal responsibility, the
jury was free to accept or reject in whole or in part the opinion of
any expert’ ” (People v Law, 273 AD2d 897, 898, lv denied 95 NY2d
965), “at least in the absence of a serious flaw in the expert’s
                                 -2-                           642
                                                         KA 11-00262

testimony” (People v Irizarry, 238 AD2d 940, 941, lv denied 90 NY2d
894 [internal quotation marks omitted]).

     We further conclude that County Court properly allowed the
prosecutor to cross-examine a defense expert concerning statements
made by a defendant in another case in which that expert had
previously testified. Because those statements were not testimonial
in nature (see generally Davis v Washington, 547 US 813, 822),
defendant’s right to confront witnesses against her, as articulated by
the Supreme Court in Crawford v Washington (541 US 36), was not
violated by that line of questioning (see generally People v Bradley,
8 NY3d 124, 126). Defendant failed to preserve for our review her
further contention that the prosecutor’s use of those statements on
cross-examination of the defense expert violated the rule against
hearsay (see CPL 470.05 [2]), and we decline to exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     We agree with defendant, however, that the sentence is unduly
harsh and severe. Defendant, who is 70 years old, has no prior
criminal record and, as the People correctly concede, her crime was
not intentional in nature. We note that the victim’s parents
supported defendant throughout the proceedings and, at sentencing,
they pleaded with the court not to incarcerate her. The parents
stated that a sentence of incarceration would only compound their
tragedy and add to their grief. The court nevertheless sentenced
defendant to the maximum punishment permitted by law, i.e., an
indeterminate term of imprisonment of 5 to 15 years. Although we are
cognizant that an innocent life has been lost at its infancy, we
conclude that, under the circumstances of this case, an indeterminate
term of imprisonment of 2 to 6 years is more appropriate. Thus, as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[b]), we modify the judgment accordingly.




Entered:   June 17, 2011                        Patricia L. Morgan
                                                Clerk of the Court
