In People v. Baker (3d Dept. 1/29/2009), the defendant was charged and convicted of Murder in the Second Degree under Penal Law § 125.25(4). Section 125.25(2), the general depraved indifference murder statute, requires a "grave risk of death" (emphasis added) to a person, while § 125.25(4) provides that an adult is guilty of depraved indifference murder if he creates a "grave risk of serious physical injury or death" to a child less than 11.
The victim was a 20-month-old child of the defendant's girlfriend. The child made crayon marks on defendant's television. As a result,
defendant struck him, and then he placed the child in a corner of the
hallway to the apartment. When the child's crying continued, defendant
reportedly went to the hallway, lifted him to eye level, shook him
repeatedly and then threw him to the floor. He landed with his back and
head striking the floor. The child was dead within three hours.
The Third Department rejected a weight-of-the-evidence challenge and upheld the defendant's conviction:
Here, there was evidence that defendant whose violence toward the child
had resulted in the child receiving medical care only three days
earlier struck the child and placed him in a corner in the hallway.
When the 20-month-old cried, defendant, who was estimated as 6 feet 5
inches tall, brought the child up to his eye level, shook him and then
threw him to the floor. Although the child stopped breathing and went
limp, defendant directed the child's mother to delay calling for help.
A forensic pathologist testified that the infant's cause of death was
blunt force injuries to the head. Having weighed and "assessed the
evidence in light of the elements of the crime as charged to the jury" (People v Johnson, 10 NY3d 875, 878 [2008]), we find unavailing the contention that the verdict is against the weight of the evidence (see People v Heslop, 48 AD3d 190, 193 [2007], lv denied 10 NY3d 935 [2008]; People v Maddox, 31 AD3d 970, 972-973 [2006], lv denied 7 NY3d 868 [2006]; see also People v Gratton, 51 AD3d 1219, 1220-1221 [2008], lv denied 11 NY3d 736 [2008]).
(LC).
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