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An appeals court in Brooklyn has affirmed the first-degree assault conviction of two vegan parents who were accused of nearly starving their daughter to death. One member of the four-judge panel of the Appellate Division, 2nd Department, however, cast doubt on whether the parents were aware of the risks that a vegan diet posed to a baby. The judge, Justice Sondra Miller, said the assault conviction should be vacated. “The defendants may have been na�ve, and misguided, and even unfit to serve as the custodians of their child,” Miller wrote in People v. Swinton, 2003-04653. “What they did not do, however, is evince criminal recklessness.” Silva and Joseph Swinton, both 24, were convicted in 2003 and sentenced, respectively, to 6 years and 5 years in prison. Mr. Swinton was given a more lenient sentence due to his reduced mental capacity. Ms. Swinton gave birth to a baby girl, Ice Swinton, in July 2000. Mistrustful of doctors and modern medicine, she gave birth at home, assisted only by Mr. Swinton. Ice weighed three pounds at birth. Over the next 16 months, the Swintons fed their daughter nothing more than nuts and fruit. In November 2001, Ice weighed 10 pounds when she should have weighed about 25. She had no teeth, underdeveloped and soft bones, and could not lift her own head. Ice is reportedly now healthy and living with relatives. The parents were charged with assault, reckless endangerment and endangering the welfare of a child. Prosecutors also alleged they ignored warnings from family members who were concerned about Ice’s health. Last week, the majority of the 2nd Department said the reckless endangerment charge must be vacated, as it was a lesser included offense of the assault charge. The top charge should stand, the court said. “It was legally sufficient to establish the defendants’ guilt of the remaining counts beyond a reasonable doubt,” the majority wrote. “Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on those counts was not against the weight of the evidence.” Miller agreed that the conviction for endangering the welfare of a child should stand. But she said she was not convinced that further prosecution was proper, despite legally sufficient evidence. “While I do not dispute the conclusion that the evidence adduced at trial was legally sufficient, under the unusual circumstances herein, I find that the jury’s verdict was contrary to the weight of the evidence,” she wrote. “Accordingly, I would reverse the assault convictions and dismiss the count charging same.” Miller emphasized what she described as the Swintons’ lack of awareness and their apparent love for their daughter. The fact that they tended to their daughter’s needs — “albeit in a non-mainstream manner,” the judge wrote — and believed that they were providing adequate nutrition made their case distinguishable from People v. Word, 260 Ad2d 196 (1999). In Word, a second-degree murder conviction was reinstated against a mother who allowed her child to starve to death. In that case, Miller said, the defendant wholly failed to care for her child, unlike the Swintons. “In short, there is no question that the defendants were uninformed, misguided parents,” Miller wrote. “The weight of the evidence, however, did not prove that they consciously disregarded known risks, and thus their assault convictions should be reversed as contrary to the weight of the evidence.” Queens District Attorney Richard A. Brown said in a statement that the panel’s “affirmance of the jury’s verdict and the trial court’s sentence of incarceration conveys a clear message that child neglect of this magnitude is a serious crime that can never be condoned. It supports the efforts of my office to deal harshly with those who victimize vulnerable children.” Justices Thomas A. Adams, Stephen G. Crane and William F. Mastro composed the majority. Assistant District Attorneys Gary Fidel and Linda Cantoni prosecuted the appeal. Steven R. Bernhard of Appellate Advocates represented Joseph Swinton. Kevin Costello represented Silva Swinton.

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