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

1116
KA 12-01356
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KELLY J. KEEGAN, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (WENDY LEHMANN, NEW
YORK PROSECUTORS TRAINING INSTITUTE, INC., ALBANY, OF COUNSEL), FOR
RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Donald E.
Todd, A.J.), rendered June 21, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree,
assault in the second degree (two counts), assault in the third
degree, reckless assault of a child, and endangering the welfare of a
child (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count each of assault in the first degree
(Penal Law § 120.10 [3]), assault in the third degree (§ 120.00 [2]),
and reckless assault of a child (§ 120.02 [1]), and two counts each of
assault in the second degree (§ 120.05 [8], [9]) and endangering the
welfare of a child (§ 260.10 [1]). The convictions arose out of two
separate incidents, one in February 2011, in which the infant victim’s
ears were injured, and a second in March 2011, in which the child,
then not yet a year old, suffered a traumatic brain injury and other
debilitating permanent injuries.

     Contrary to defendant’s contention, County Court did not abuse
its discretion in denying his motion to sever those counts of the
indictment relating to the February 2011 incident from those counts
relating to the March 2011 incident. The counts are joinable because
they “are defined by the same or similar statutory provisions and
consequently are the same or similar in law” (CPL 200.20 [2] [c]), and
defendant failed to show good cause for a discretionary severance
under CPL 200.20 (3) (see People v Gaston, 100 AD3d 1463, 1464-1465;
see generally People v Mahboubian, 74 NY2d 174, 183).
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                                                         KA 12-01356

     Defendant further contends that his statements to the police were
involuntary because his “emotional state caused his will to be
overborne,” and that the court therefore erred in refusing to suppress
those statements. Inasmuch as defendant failed to seek suppression of
the statements on that ground, he failed to preserve that contention
for our review (see generally People v Ricks, 49 AD3d 1265, 1266, lv
denied 10 NY3d 869, reconsideration denied 11 NY3d 740). In any
event, we conclude that “[t]he evidence at the suppression hearing
does not establish that defendant’s will was overborne or that
defendant’s capacity for self-determination was critically impaired”
(People v Worth, 233 AD2d 939, 940-941), and thus defendant’s
contention lacks merit. By failing to object to the testimony of a
police officer concerning his prior dealings with defendant, defendant
likewise failed to preserve for our review his contention that the
officer’s testimony was improper (see CPL 470.05 [2]). In any event,
the court sua sponte issued a curative instruction, and the court’s
instruction was “sufficient to alleviate any prejudice to defendant”
(People v Hogan, 292 AD2d 834, 834, lv denied 98 NY2d 676).

     We reject defendant’s contention that certain photographs of the
infant victim were improperly admitted in evidence. In order to prove
that defendant committed the offense of assault in the first degree,
the People were required to establish that defendant acted recklessly
and with a depraved indifference to human life, and thereby caused
serious physical injury to the infant victim (see Penal Law § 120.10
[3]). Because “the extent of the injuries was a major element in the
prosecution’s proof that defendant acted with a depraved indifference
to human life, the introduction of the photographs cannot be
considered to have been solely motivated by a desire to inflame the
jury” (People v Arca, 72 AD2d 205, 207; see generally People v
Pobliner, 32 NY2d 356, 369, rearg denied 33 NY2d 657, cert denied 416
US 905).

     Defendant also contends that he was denied his constitutional
right to present a defense because a police officer testified
inaccurately at trial about a statement made by defendant, and the
People failed to notify defendant, pursuant to CPL 710.30, of their
intent to offer that inaccurate testimony at trial. We reject that
contention. At the hearing on defendant’s posttrial motion, the
police officer testified that he had inaccurately testified at trial
about defendant’s statement based on an unfounded assumption about
that statement. Inasmuch as the officer’s inaccurate testimony was
inconsistent with defendant’s statement to the police, which was
thereafter admitted in evidence at trial, the court properly struck
that testimony and instructed the jury to disregard it. In addition,
the prosecutor stipulated before the jury that the testimony in
question was inaccurate. Under the circumstances, we conclude that
the police officer’s inaccurate testimony did not deny defendant his
constitutional right to present a defense, and the court therefore
properly denied defendant’s mistrial motion and posttrial motion to
set aside the verdict on that ground.

     Defendant failed to object to the jury charge as given, and
therefore failed to preserve for our review his contention that the
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                                                         KA 12-01356

jury charge was improper (see generally People v Robinson, 88 NY2d
1001, 1001-1002). In any event, contrary to defendant’s contention,
the court properly charged the jury that defendant could intend to
cause physical injury for purposes of the assault in the second degree
count while at the same time “recklessly creat[ing] ‘a grave risk that
a different, more serious result . . . would ensue from his actions’ ”
for purposes of the assault in the first degree count (People v
Belcher, 289 AD2d 1039, 1039, lv denied 97 NY2d 751, quoting People v
Trappier, 87 NY2d 55, 59). The court also properly denied defendant’s
request for an “entire case” circumstantial evidence charge because
the evidence adduced at trial was not wholly circumstantial (see e.g.
People v Bryce, 174 AD2d 945, 946, lv denied 79 NY2d 854).

     Defendant further contends that the evidence is legally
insufficient to support the conviction of assault in the first degree
because the People failed to establish that he acted with depraved
indifference. We reject that contention. Despite the infliction of
serious injuries upon the infant victim, including a traumatic brain
injury, defendant failed to seek medical treatment until the infant
victim became fully unresponsive. Under these circumstances, the jury
“could have rationally found beyond a reasonable doubt that defendant
consciously disregarded the substantial and unjustifiable risk that
death or serious injury would result” from his actions (People v
Barboni, 21 NY3d 393, 405). While defendant also contends that the
People failed to prove with respect to the March 2011 incident that he
alone could have caused the injuries suffered by the infant victim, we
conclude that the evidence is legally sufficient to establish that the
child was in defendant’s sole custody at the time the injuries were
inflicted (see People v Walter, 128 AD3d 1512, 1512-1513, lv denied 25
NY3d 1173). Defendant also contends that the evidence is legally
insufficient to support his conviction of assault in the third degree
and endangering the welfare of a child with respect to the February
2011 incident, in which the infant victim’s ears were injured. We
again reject that contention. Based upon the evidence adduced at
trial, there is a valid line of reasoning and permissible inferences
to lead a rational person to conclude that defendant, knowing that his
actions were likely to injure the infant victim, recklessly caused the
infant victim physical injury (see Penal Law §§ 10.00 [9]; 120.00 [2];
260.10 [1]; People v Van Guilder, 29 AD3d 1226, 1228). 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 reject defendant’s
further contention that the verdict is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     “[D]efendant’s claim of ineffective assistance of counsel, to the
extent that it is premised on his attorney’s failure to retain and
call an expert witness, involves matter dehors the record and, thus,
is not properly before us on this direct appeal from the judgment”
(People v Staropoli, 49 AD3d 568, 568-569, lv denied 10 NY3d 871).
Despite defendant’s further claims of ineffective assistance, we
conclude that the record as a whole establishes that defense counsel
provided meaningful representation (see generally People v Baldi, 54
NY2d 137, 147).
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                                                         KA 12-01356

     Defendant further contends that the court did not properly inform
counsel of a jury note prior to responding to it (see People v O’Rama,
78 NY2d 270, 276-278). Because “the court read the note verbatim
before the jury, defense counsel, and defendant[, and d]efense counsel
raised no objection,” defendant failed to preserve his contention for
our review (People v Arnold, 107 AD3d 1526, 1527, lv denied 22 NY3d
953; see People v Alcide, 21 NY3d 687, 693-694; People v Stoutenger,
121 AD3d 1496, 1498-1499, lv denied 25 NY3d 1077). We decline to
exercise our power to review defendant’s contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]; People
v Bonner, 79 AD3d 1790, 1790-1791, lv denied 17 NY3d 792).

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




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
