A woman who put a comforter over her crying 2-year-old son’s face until he passed out and then left him alone for 19 hours did not evince the “wickedness” necessary to sustain a depraved indifference murder conviction, a unanimous upstate appellate panel has held.

The Appellate Division, Fourth Department, in People v. Santiago, 07-02489, reduced the defendant’s second-degree murder conviction to second-degree manslaughter. The Dec. 28 decision was the second in seven days in which the justices in Rochester upset convictions where the prosecution could not establish legal depravity. One week earlier, in People v. Jean-Philippe, 08-02474, a Fourth Department panel said a man who had led police on a high-speed chase in traffic, ran several red lights and collided with several vehicles behaved recklessly, but not with the malevolence to meet the ever-evolving definition of depraved indifference.

In other recent criminal cases, the court said a judge in Monroe County erred in permitting a defendant to proceed pro se without undertaking the requisite “searching inquiry” (People v. Williams, 10-01107), and held that an Onondaga County judge properly refused to suppress evidence discarded by a suspect fleeing from police (People v. McKinley, 09-01307).

Santiago arose from Monroe County, where the district attorney attempted to fit the facts of that case within the Court of Appeals’ 2005 definition of “depraved indifference” in People v. Suarez, 6 NY3d 202.

Records show that defendant Jessica Santiago suffocated her 2-year-old child, left the room after he passed out late one afternoon and did not return until late the next morning. The prosecution argued, quoting from Suarez , that the defendant “abandon[ed] a helpless and vulnerable victim in circumstances where the victim is highly likely to die.” But the Fourth Department relied on a more recent precedent, People v. Matos, 19 NY3d 470 (2012), and found that the evidence of depraved indifference homicide was legally insufficient.

In Matos, the Court of Appeals last May decided an appeal where the defendant’s girlfriend beat her nearly 2-year-old son, breaking the boy’s leg and several ribs and causing severe internal bleeding as well as liver and lung damage. The defendant, apparently fearing that she would lose the child if authorities were notified, prepared a makeshift splint out of an ACE bandage, gave him Ibuprofen and then left the victim alone for seven hours, according to court papers.

Judge Carmen Beauchamp Ciparick, then writing for the divided court, said the crime did not rise to the level of “wickedness, evil or inhumanity” necessary “to render the actor as culpable as one whose conscious objective is to kill.” Ciparick said that while it is obvious that the defendant “cared much too little about her child’s safety” the evidence did not establish that “she did not care at all.”

Likewise, in Santiago, the Fourth Department said the evidence could not support a conviction for depraved indifference murder. It reduced the conviction to second-degree manslaughter and remitted to Monroe County court for resentencing.

Santiago was decided in a memorandum signed by Justices John Centra (See Profile), Erin Peradotto (See Profile), Rose Sconiers (See Profile), Joseph Valentino (See Profile) and Salvatore Martoche (See Profile).

Brian Shiffrin of Easton Thompson Kasperek Shiffrin in Rochester argued for the defendant.

Assistant Monroe County District Attorney Nicole Fantigrossi represented the prosecution.

Sleeping Juror

In Jean-Philippe, Jeffrey Jean-Philippe was convicted of first-degree reckless endangerment and three counts of second-degree criminal possession of a forged instrument. The court reversed the convictions on the possession charge because a juror had fallen asleep, and dismissed the reckless endangerment count because the prosecution had not established the element of depraved indifference.

On the sleeping juror issue, Monroe County Judge Francis Affronti allowed the case to proceed after asking the juror if she had missed any relevant or important testimony, and she assured him that she had not. There were no alternate jurors and Affronti was apparently attempting to rehabilitate the sleeping juror to avoid a mistrial, the appeals court said.

“The court’s efforts, however, were unavailing,” the panel said. “Once it was determined that the juror had fallen asleep and missed some portion of the trial testimony, it was incumbent upon the court to dismiss that juror, even though dismissal would have necessitated a mistrial.” The memorandum joined by Presiding Justice Henry Scudder (See Profile) and Justices Edward Carni (See Profile), Centra, Sconiers and Martoche.

On the depraved indifference issue, the panel dismissed the count without prejudice, inviting the prosecution to “re-present to another grand jury any appropriate charge.”

Assistant Public Defender Mary Davison represented Jean-Philippe.

Matthew Dunham of Rochester appeared for the prosecution.

Insufficient Inquiry

The pro se defendant case, Williams, involved three separate trials in two counties.

Records show that Isiah Williams was convicted three times between 2009 and 2010 of charges related to a forged check drawn on the Monroe County Sheriff’s Office. Williams was tried twice before Monroe County Judge John Connell and once before Acting Ontario County Judge Frederick Reed.

In the Ontario County case, Williams was convicted of fourth-degree grand larceny and second-degree possession of a forged instrument.

The Fourth Department said re-versal is required in Ontario County because of an improper notation on the verdict sheet that included the numbers on the checks Williams allegedly cashed, and also because Reed improperly limited the defense counsel’s summation.

According to the Fourth Department, Reed should not have sustained a prosecution objection raised when the defense attempted to impugn the credibility of an alleged accomplice who testified for the prosecution. It said counsel has a right during summation to “comment upon every pertinent matter of fact bearing upon the questions the jury have to decide” (quoting from People v. Ashwal, 39 NY2d 105 [1976]).

Additionally, the panel said Connell in Monroe County neglected to fully ascertain that Williams understood the ramifications when he fired his court-appointed attorney on “baseless allegations” and allowed him to proceed at both trials pro so. The panel also said Connell should have suppressed an in-court identification of the defendant because it was based on an “unduly suggestive photo array procedure.”

William Pixley of Rochester represented Williams on both the Monroe County appeals and Fantigrossi appeared for the prosecution in both matters.

Williams was represented by Shirley Gorman of Brockport in the Ontario County case while Assistant District Attorney James Ritts argued for the prosecution.

Scudder, Carni, Sconiers, Eugene Fahey (See Profile) and Stephen Lindley (See Profile) decided all three cases.

Reasonable Suspicion Found

The Syracuse suppression matter hinged on whether police had a “founded suspicion that criminal activity was underfoot” (see People v. DeBour, 40 NY2d 210, 1976) when they chased a suspect who discarded a weapon and was caught with a bag of cocaine.

According to court papers, police in Syracuse received a 911 call of shots being fired near the intersection of East Fayette Street and Columbus Avenue and that four black males, one of them wearing dark clothing, were involved. Within 90 seconds, police officers in an unmarked vehicle approached a group of four black men, including defendant Travontae McKinley, who was wearing dark clothing. When the police approached, two of the men, including McKinley, fled in opposite directions, records show.

An officer began chasing McKinley, identifying himself and ordering the suspect to stop. During the chase, McKinley discarded a handgun. After he was caught, authorities found him in possession of cocaine. McKinley ultimately pleaded guilty to second-degree criminal possession of a weapon.

On appeal, McKinley argued that police lacked the requisite reasonable suspicion of criminal activity to pursue the defendant. Unanimously, the Fourth Department rejected that argument.

“We conclude that, based upon defendant’s physical and temporal proximity to the scene of the reported incident and the fact that the group of males matched the description of the individuals involved in the shooting, the officers had a founded suspicion that criminal activity was afoot, justifying their initial common-law inquiry of defendant,” the panel said in a memorandum shared by Justices Nancy Smith (See Profile), Peradotto, Lindley, Valentino and Whalen. “We further conclude that defendant’s flight as the officers began to exit their vehicle and his continued flight in defiance of orders to stop furnished the requisite reasonable suspicion to justify a greater level of police intrusion.”

Assistant Onondaga County District Attorney Susan Azzarelli represented the prosecution.

McKinley was represented by Piotr Banasiak of the Frank H. Hiscock Legal Aid Society in Syracuse.

@|John Caher can be contacted at jcaher@alm.com.