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

1219
KA 07-02489
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JESSICA L. SANTIAGO, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P. Geraci,
Jr., J.), rendered October 3, 2007. The judgment convicted defendant,
upon a jury verdict, of murder in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of murder in
the second degree under the first count of the indictment (Penal Law §
125.25 [2]) to manslaughter in the second degree (§ 125.15 [1]) and
vacating the sentence imposed on that count, and by reversing that part
convicting defendant of murder in the second degree under the second
count of the indictment (§ 125.25 [4]) and dismissing that count and as
modified the judgment is affirmed, and the matter is remitted to Monroe
County Court for sentencing on the conviction of manslaughter in the
second degree.

     Memorandum: On appeal from a judgment convicting her upon a jury
verdict of two counts of murder in the second degree (Penal Law § 125.25
[2], [4] [depraved indifference, depraved indifference with victim less
than 11 years old, respectively]), defendant contends that the
conviction is not supported by legally sufficient evidence. We note at
the outset that defendant does not on appeal dispute that the evidence
is legally sufficient to establish that she acted recklessly, but
instead contends that the evidence is legally insufficient to establish
that she acted with depraved indifference to human life. We agree.
Viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the evidence is
legally insufficient to prove beyond a reasonable doubt that defendant
“acted with the culpable mental state of depraved indifference” (People
v Swinton, 7 NY3d 776, 777, rearg denied 7 NY3d 864). The evidence
established that defendant, at around 4:00 p.m., suffocated her almost
two-year-old son who was crying by placing a comforter over his face and
then leaving the room after he “passed out.” Defendant did not return
                                 -2-                          1219
                                                         KA 07-02489

to her son’s room until late the next morning, which was almost 19 hours
later. At trial, the People proceeded on the theory that defendant
acted with depraved indifference in that she “abandon[ed] a helpless and
vulnerable victim in circumstances where the victim is highly likely to
die” (People v Suarez, 6 NY3d 202, 212). We conclude, however, that the
evidence is legally insufficient to establish that defendant’s actions
“r[o]se to the level of ‘wickedness, evil or inhumanity’ so ‘as to
render the actor as culpable as one whose conscious objective is to
kill’ ” (People v Matos, 19 NY3d 470, 476, quoting Suarez, 6 NY3d at
214). We therefore modify the judgment by reducing the conviction of
murder in the second degree under the first count of the indictment (§
125.25 [2]) to manslaughter in the second degree (§ 125.15 [1]) and
vacating the sentence imposed on that count (see CPL 470.15 [2] [a]),
and we remit the matter to County Court for sentencing on the conviction
of manslaughter in the second degree (see CPL 470.20 [4]). We further
modify the judgment by reversing that part convicting defendant of
murder in the second degree under the second count of the indictment
(Penal Law § 125.25 [4]). We dismiss that count of the indictment
rather than reducing it, however, inasmuch as manslaughter in the second
degree is not a lesser included offense of that count (see People v
Robinson, 278 AD2d 798, 798, lv denied 96 NY2d 762). In light of our
determination that the evidence is legally insufficient, we do not
address defendant’s contention that the verdict is against the weight of
the evidence, which is also based on her contention that she did not act
with depraved indifference.

     In addition, defendant contends that she was denied a fair trial by
prosecutorial misconduct on summation. The vast majority of the alleged
improprieties are unpreserved for our review because defendant either
failed to object to them or she raised only general objections (see CPL
470.05 [2]; People v Brown, 94 AD3d 1461, 1462, lv denied 19 NY3d 995).
In any event, we conclude that defendant’s contention is without merit.
Many of the comments were “ ‘either a fair response to defense counsel’s
summation or fair comment on the evidence’ ” (People v Green, 60 AD3d
1320, 1322, lv denied 12 NY3d 915). Although we agree with defendant
that the prosecutor improperly characterized certain testimony of the
Medical Examiner, we conclude that the court’s curative instruction
alleviated any prejudice (see People v Bowen, 60 AD3d 1319, 1320, lv
denied 12 NY3d 913). Moreover, while there was no basis for the
prosecutor to suggest that defendant must have smelled the body
decomposing in her home, that comment was not so egregious as to deprive
defendant of a fair trial (see People v Gutierrez, 96 AD3d 1455, 1456,
lv denied 19 NY3d 997; People v Szyzskowski, 89 AD3d 1501, 1503). We
reject defendant’s further contention that she received ineffective
assistance of counsel based on defense counsel’s failure to object to
the allegedly improper comments made by the prosecutor (see People v
Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954; cf. People v Fisher, 18
NY3d 964, 966-967).

     We reject defendant’s contention that the court erred in denying
her request for a missing witness charge. Two police investigators were
in the interview room when defendant gave a written statement, and one
of those investigators testified at trial and read defendant’s statement
into evidence. The testimony of the other investigator, who was not
                                 -3-                          1219
                                                         KA 07-02489

called to testify, would have been cumulative, and thus a missing
witness charge was inappropriate (see People v Hawkins, 84 AD3d 1736,
1737, lv denied 17 NY3d 806; People v Duda, 45 AD3d 1464, 1466, lv
denied 10 NY3d 764; see also People v Buckler, 39 NY2d 895, 897; see
generally People v Gonzalez, 68 NY2d 424, 427-428). Defendant’s
contention that the court failed to provide a meaningful response to the
jury’s request for clarification of a certain jury instruction is not
preserved for our review (see People v Swail, 19 AD3d 1013, 1013, lv
denied 6 NY3d 759, reconsideration denied 6 NY3d 853). In any event,
her contention is without merit. Under the circumstances of this case,
the court’s rereading of the instruction constituted a meaningful
response (see CPL 310.30; People v Santi, 3 NY3d 234, 248).




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
