Summary
In Swinton, the Court of Appeals found that the evidence was legally insufficient to prove beyond a reasonable doubt that the defendants acted with the culpable mental state of depraved indifference where their 16-month-old child, weighing 10 pounds, suffered severe malnutrition due to a nutritionally deficient diet imposed by the parents.
Summary of this case from People v. DickersonOpinion
Nos. 159, 158.
Decided July 6, 2006.
APPEALS, in the two above-entitled actions, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered September 19, 2005. The Appellate Division modified, on th e law, judgment s of the Supreme Court, Queens County (Richard Buchter, J.), which had convicted defendants, upon jury verdicts, of assault in the first degree, reckless endangerment in the first degree and endangering the welfare of a child. The modification consisted of vacating the convictions of reckless endangerment in the first degree under count two of the indictment, vacating the sentences imposed thereon and dismissing that count of the indictment. The Appellate Division affirmed the judgments as modified.
People v. Swinton (Joseph), 21 AD3d 1039, modified.
People v. Swinton (Silva), 21 AD3d 1039, modified.
Appellate Advocates, New York City ( Lynn W.L. Fahey of counsel), for Joseph Swinton, appellant.
Kevin Costello, Flushing, for Silva Swinton, appellant.
Richard A. Brown, District Attorney, Kew Gardens ( Linda Cantoni of counsel), for respondent.
Before: Judges G.B. SMITH, ROSENBLATT, READ and R.S. SMITH concur in memorandum; Chief Judge KAYE and Judges CIPARICK and GRAFFEO concur in result on constraint of People v Feingold ( 7 NY3d 288).
OPINION OF THE COURT
reducing defendants' convictions for assault in the first degree to assault in the third degree and remitting to Supreme Court for resentencing and, as so modified, affirmed. Viewing the evidence in the light most favorable to the People, the evidence is legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference ( People v. Feingold, 7 NY3d 288). The evidence is legally sufficient, however, to support the jury's determination that defendants acted recklessly.
In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.