the judges of the Court of Appeals
Standing, left to right: Judges Jenny Rivera, Robert Smith, Susan Phillips Read, Sheila Abdus-Salaam, and Eugene Pigott Jr. Seated, Judge Victoria Graffeo and Chief Judge Jonathan Lippman (Skip Dickstein)

ALBANY – The state Court of Appeals has upheld a woman’s manslaughter conviction for smothering her stepdaughter over the stringent objections of two dissenters who said the prosecution’s PowerPoint presentation to the jury was “flagrantly inappropriate” and prejudicial to the defendant.

In a set of hand-downs that was heavy on criminal matters, the court Tuesday also ruled that a police search that yielded a loaded handgun from a burglary suspect’s purse was illegal and gave a broad reading to the kinds of contact that can constitute the crime of forcible touching.

The majority of the 5-2 court in the asphyxiation case, People v. Santiago, 22, declined to reverse Cheryl Santiago’s conviction for several alleged trial errors, including an ineffective-assistance-of-counsel claim based on her attorney’s failure to object to the PowerPoint.

In her summation in Dutchess County Court, the prosecutor showed a post-mortem photograph of the 21-month-old girl, named Justice, which slowly faded to white over six minutes, the time it would have taken for the girl to be asphyxiated, according to the prosecution’s expert witness. Captions such as “one and a half to two minutes, struggle ends” and “four minutes, brain death occurs,” were part of the presentation.

Defense attorney Steven Patterson did not object.

The majority of the court conceded Tuesday that it was “difficult to discern” the “relevance” of the prosecution’s presentation.

“This did not show how Justice’s death occurred nor would it have aided the jury in its fact-finding function,” Judge Eugene Pigott Jr. (See Profile) wrote.

Nevertheless, Pigott noted the issue was not preserved for the court’s review by a defense counsel’s timely objection to Dutchess County Judge Gerald Hayes.

“But that did not occur and the objection to the PowerPoint presentation that defendant now raises is not so ‘clear-cut’ or ‘dispositive’ an argument that its omission amounted to ineffective assistance of counsel,” Pigott added, quoting People v. Howard, 2013 NY Slip Op 7824.

Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile) and Sheila Abdus-Salaam (See Profile) were also in the majority.

Judge Jenny Rivera (See Profile), joined in dissent by Chief Judge Jonathan Lippman (See Profile), said the PowerPoint demonstration “manipulated” the evidence against Santiago by use of the fade-to-white technology and was “designed to inflame the passion of the jury in order to engender prejudice against the defendant.”

Citing People v. Ashwal, 39 NY2d 105 (1976), Rivera said the presentation to jurors crossed the line from a recitation of evidence favorable to the prosecution’s case into an “impermissible attempt to secure a verdict based on emotion and repulsion for the defendant.”

“Although this exercise [summation] in adversarial oratory need not be dispassionate in delivery, and counsel may choose to employ various linguistic and rhetorical devices, the prosecutor cannot redirect the fact-finder’s deliberative process from the evidence by playing on emotion,” Rivera wrote.

She warned that with more sophisticated electronics available such as PowerPoint, “we must be mindful of the impact of technology on events in the courtroom, and, most especially, on the criminal justice system.”

The majority also rejected the defendant’s arguments that a confession Santiago gave to police following Justice’s death in October 2007 was not sufficiently corroborated by independent evidence and that romantic passages were not adequately redacted from letters Santiago sent to another jail inmate to whom she also acknowledged causing Justice’s death.

The romantic passages unfairly portrayed Santiago in a negative light in jurors’ eyes, the defense contended.

The ruling upheld an Appellate Division, Second Department, panel in People v. Santiago, 97 AD3d 704 (2012). It found the jury’s verdict of second-degree murder against Santiago was against the weight of the evidence and reduced the conviction to second-degree manslaughter.

Santiago, now 26, is serving a five- to 15-year sentence.

Assistant Dutchess County District Attorney Kirsten Rappleyea, who argued for the prosecution before the Court of Appeals, said in an interview Tuesday that the PowerPoint was a legitimate way to demonstrate that Justice’s death was intentional because it would have taken at least six minutes without oxygen for the girl to die.

“I feel that the PowerPoint presentation was relevant and a fair comment on the medical evidence produced at the trial,” Rappleyea said. “It was not presented to arouse the emotions of the jury.”

Malvina Nathanson, who represented Santiago, declined to comment on Tuesday’s ruling.

The prosecution contended that Santiago resented the time her new husband Santos Santiago spent with Justice, his child from a previous relationship, and smothered the girl at the Wappingers Falls home the woman shared with her husband.

While Cheryl Santiago initially told authorities that the girl was accidentally asphyxiated by a plastic bag, she admitted under interrogation that she had covered Justice’s mouth and nose with her hand to “quiet her.”

Cheryl Santiago insisted that she held her hand on Justice’s face for only about 30 seconds and did not kill her.

Illegal Search

In another ruling, the court threw out a second-degree criminal possession of a weapon charge against defendant Josefina Jimenez, finding that the loaded handgun discovered in her purse by police was the result of an illegal search as she was being arrested as a suspected burglar in a Bronx apartment house. Lippman wrote for a 4-3 majority in People v. Jimenez, 23, that exigent circumstances did not exist to justify the warrantless search. He noted that police said they became suspicious about the contents of the purse when they felt how heavy it was.

As many as eight police officers may have been on the scene to prevent Jimenez from grabbing the gun from the purse, the chief judge wrote.

“The testimony demonstrated that defendant was cooperative and offered no resistance to the removal of the purse from her shoulder, the ensuing frisk, or the placing of handcuffs,” Lippman wrote. “Furthermore, the unremarkable fact that a woman’s purse appeared heavy is insufficient, on its own, to support a reasonable believe that it contains either a weapon or destructible evidence.”

In addition to dismissing the weapons possession conviction, the court reduced the first-degree criminal trespass conviction to second-degree criminal trespassing.

Graffeo, Smith and Rivera joined in Lippman’s decision.

In dissent, Abdus-Salaam wrote that Jimenez gave evasive answers to police who why she was in the apartment house and that it was not inconceivable that she might have a weapon—which, it turned out, she did—-in the purse she clutched to her body.

“A reasonable inference that the requisite exigency existed can be drawn from the facts established at the suppression hearing,” Abdus-Salaam wrote in a dissent in which she was joined by Read and Pigott.

Assistant Bronx District Attorney Noah Chamoy argued for the prosecution. Richard Joselson of the Legal Aid Society of New York City represented Jimenez.

Forcible Touching Statute

In People v. Guaman, 29, the court gave a broad reading to the state’s forcible touching statue, Penal Law §130.52, in upholding the validity of an information charging defendant Luis Guaman with the crime.

The statute says a victim must be subjected to the “squeezing, grabbing or pinching” of their intimate body parts for the offense to be charged. Guaman argued that his act of rubbing his exposed penis against another man’s buttocks inside the subway station at Lexington Avenue and East 42nd Street in April 2009 did not qualify.

But in a decision by Read, the court said the Legislature mentioned “squeezing, grabbing or pinching” only as examples of conduct which may be charged as forcible touching. “Any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as forcible touching,” if done with the requisite mens rea, Read wrote.

Graffeo, Smith, Pigott and Rivera joined in the ruling.

In a concurrence, Lippman said his five colleagues went “far beyond” what was necessary to uphold the information against Guaman and were expanding the scope of the forcible touching statute by adding the imprecise phrase “some level of pressure.”

Abdus-Salaam took no part in the ruling.

Assistant Manhattan District Attorney Yuval Simchi-Levi argued for the prosecution.

James McGuire of Dechert represented Guaman.

Also Tuesday, the court said in a 6-1 ruling that defendant Gunther Flinn knowingly waived his right to be present during bench conferences at which prospective jurors were questioned at his attempted murder trial.

The majority said in a ruling by Smith in People v. Flinn, 20, that the judge in Jefferson County Court told Flinn he was “welcome to attend” the conferences, but that the defendant chose not to do so.

The court said that invitation has been found sufficient to notifiy a defendant of his rights under People v. Antommarchi, 80 NY2d 247 (1992).

Graffeo, Read, Pigott, Lippman and Abdus-Salaam were also in the majority.

Rivera dissented, saying Flinn’s waiving of his Antommarchi rights was only implicit and not sufficient to demonstrate that it was “voluntary, knowing and intelligent.”

The majority let stand Flinn’s convictions for second-degree attempted murder, assault and other charges.

Assistant Jefferson County District Attorney Patricia Dziuba argued for the prosecution. Martin McCarthy of Muldoon & Getz in Rochester represented Flinn.