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

202
KA 09-01366
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRANDI E., ALSO KNOWN AS BRANDI G.,
DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from an adjudication of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered May 18, 2009. Defendant was
adjudicated a youthful offender upon a jury verdict finding her guilty
of endangering the welfare of a child.

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

     Memorandum: Defendant appeals from a youthful offender
adjudication upon a jury verdict finding her guilty of endangering the
welfare of a child (Penal Law § 260.10 [1]). We note as background
that, in a prior trial concerning the same indictment, the jury
acquitted defendant of two counts of assault in the first degree under
circumstances evincing a depraved indifference to human life (§ 120.10
[3]), each of which arose from a separate incident. The jury,
however, convicted defendant of a third count of that offense, which
arose from a third incident, and one count of endangering the welfare
of a child (§ 260.10 [1]), which was based upon all three incidents.
Supreme Court vacated the conviction upon a subsequent CPL article 440
motion and directed a new trial upon the remaining assault in the
first degree count and the endangering the welfare of a child count.
Prior to the new trial, which is at issue here, defendant apparently
moved to preclude the prosecution from presenting any evidence with
respect to the two incidents that were the bases for the assault
charges of which she was acquitted (two prior incidents) on the ground
that admission of that evidence was barred by the doctrine of
collateral estoppel. The court indicated that it would not preclude
evidence of the two prior incidents at that time, but would rule upon
any objection made by defendant during the trial. The court, in
effect, denied defendant’s motion when it permitted the People to
introduce at the new trial evidence concerning the two prior incidents
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                                                         KA 09-01366

over defendant’s objections.

     Defendant contends that the court violated the doctrine of
collateral estoppel when it permitted the People to introduce at the
new trial evidence related to the assault charges of which she was
acquitted, i.e., evidence of the two prior incidents. We reject that
contention. “Collateral estoppel originally developed in civil
litigation, but it is now clear that the doctrine applies generally to
criminal proceedings as well” (People v Goodman, 69 NY2d 32, 37; see
Ashe v Swenson, 397 US 436, 443). “The doctrine of collateral
estoppel, or issue preclusion, operates in a criminal prosecution to
bar relitigation of issues necessarily resolved in defendant’s favor
at an earlier trial” (People v Acevedo, 69 NY2d 478, 484). Thus, the
doctrine applies in a situation such as this, where at a prior trial
there was a mixed verdict in which the jury acquitted a defendant of
certain charges, but was unable to reach a verdict on the remaining
charges (see e.g. People v Marmorato, 138 AD2d 410, 411, lv denied 71
NY2d 970). “Application of the collateral estoppel doctrine requires
that the court determine what the first judgment decided and how that
determination bears on the later judgment . . . The rule is easily
stated but frequently difficult to implement because the meaning of a
general verdict is not always clear and mixed verdicts may, at times,
appear inherently ambiguous. Nevertheless, the court must assume the
jury reached a rational result . . . , and a defendant claiming the
benefit of estoppel carries the burden of identifying the particular
issue on which he [or she] seeks to foreclose evidence and then
establishing that the fact finder in the first trial, by its verdict,
necessarily resolved that issue in his [or her] favor” (Goodman, 69
NY2d at 40; see e.g. People v Johnson, 14 AD3d 460, 461-462).
“Defendant’s burden to show that the jury’s verdict in the prior trial
necessarily decided a particular factual issue raised in the second
prosecution is a heavy one indeed, and as a practical matter severely
circumscribes the availability of collateral estoppel in criminal
prosecutions . . . ‘[I]t will normally be impossible to ascertain the
exact import of a verdict of acquittal in a criminal trial’ ”
(Acevedo, 69 NY2d at 487; see People v Cole, 306 AD2d 558, 561, lv
denied 100 NY2d 515; cf. People v Rossi, 222 AD2d 717, 717-718, lv
denied 88 NY2d 884).

     Here, we conclude that the court properly denied defendant’s
motion to preclude the evidence regarding the two prior incidents.
Inasmuch as the endangering the welfare of a child count of which she
was convicted in the prior trial was based in part on the two prior
incidents that were the bases for the two assault counts of which she
was acquitted, it is possible that the jury in the prior trial
concluded that defendant was involved in those incidents but that her
actions did not evince a depraved indifference to human life, a
necessary element of the assault counts. Consequently, we conclude
that defendant failed to meet her heavy burden of “establishing that
the fact finder in the first trial, by its verdict, necessarily
resolved that issue in [her] favor” (Goodman, 69 NY2d at 40).

     Defendant’s contention that the evidence is legally insufficient
to support her conviction is not preserved for our review because her
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                                                         KA 09-01366

motion for a trial order of dismissal “was not specifically directed
at the same alleged shortcoming in the evidence raised on appeal”
(People v Brown, 96 AD3d 1561, 1562, lv denied 19 NY3d 1024 [internal
quotation marks omitted]; see People v Myers, 100 AD3d 1567, 1567).
In any event, that contention is without merit inasmuch as the
evidence, viewed in the light most favorable to the People (see People
v Contes, 60 NY2d 620, 621), establishes that defendant failed to
obtain medical treatment for her infant daughter after she stopped
breathing (see People v Lewis, 83 AD3d 1206, 1207, lv denied 17 NY3d
797; see generally People v Matos, 19 NY3d 470, 475-477; People v
Mayo, 4 AD3d 827, 827-828). Thus, the evidence is legally sufficient
to support the conviction (see generally People v Bleakley, 69 NY2d
490, 495). Additionally, viewing the evidence in light of the
elements of the crime of endangering the welfare of a child 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 Bleakley, 69 NY2d at 495).

     Contrary to defendant’s further contention, although a
prospective juror initially made statements indicating that she might
have “a state of mind that [was] likely to preclude [her] from
rendering an impartial verdict based upon the evidence adduced at the
trial” (CPL 270.20 [1] [b]), “she ultimately stated unequivocally that
she could follow the law and be fair and impartial” (People v
Gladding, 60 AD3d 1401, 1402, lv denied 12 NY3d 925; see generally
People v Chambers, 97 NY2d 417, 419; People v Arnold, 96 NY2d 358,
362). Thus, the court did err in denying defendant’s challenge for
cause to that prospective juror (cf. People v Johnson, 94 NY2d 600,
614-615).

     We have considered defendant’s remaining contentions and conclude
that none requires reversal or modification of the adjudication.




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
