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Defendant, with his live-in partner, resided with a six year old ‘adopted’ daughter


Defendant, with his live-in partner, resided with a six year old ‘adopted’ daughter and his other ‘adopted’ 16-month old boy. Neither child has been legally adopted. On November 1, 1987, defendant scolded the six year old daughter for not drinking enough water and expressed annoyance with her. At approximately 6:00 p.m. of the same day, the girl went to into the bedroom to ask defendant if he would take her with him to a dinner engagement. Moments later, defendant carried the unconscious body of the daughter out of the bedroom. When the wife asked him what happened, defendant replied, “What’s the difference what happened. This is your child. Hasn’t this gone far enough?” The wife had no idea what defendant meant by this remark. Defendant handed the girl to defendant, who placed her on the bathroom floor. The child’s eyes were closed, she was unresponsive and she was not moving at all. Her breathing was raspy.

Defendant from The Bronx dressed for the dinner and went back home. Upon his return, the girl hasn’t regain her consciousness at all. The wife, believing that defendant has healing powers, urged him to heal the child. Instead, defendant and the wife took cocaine where defendant admitted he knocked the girl down because she stared defendant a lot. The next day, the child was still unconscious. Defendant tried to revive the girl and the wife called 911. The paramedics decided to bring the girl to a hospital where a tube was placed into her trachea to insure that air would go directly into her lungs.

The medical personnel observed that the girl’s body was covered with multiple bruises in various parts of her body, legs, knees and thighs. A neurological resident concluded that the child sustained brain injury due to pressing down of the brain stem causing subdural hematoma near her forehead. Over the course of the next few days, the girl’s condition did not improve and she was not responding to medical treatment. On November 4, she was declared brain dead. On November 5, the hospital removed the girl’s life support system and was pronounced dead.

Defendant was convicted of manslaughter in the first degree. Defendant appealed the judgment of conviction. Defendant argues that while a father’s failure to provide medical assistance to his child may be the basis of a prosecution for reckless or negligent homicide it cannot, as a matter of law, support a charge of intentional homicide since a crime based in part on an omission to act cannot be intentional. Defendant thus contends he was convicted of a non-existent crime.

The Brooklyn Court, in applying the required strict scrutiny standard in a case such as this, based upon circumstantial evidence found that defendant’s guilt of manslaughter in the first degree was proven beyond a reasonable doubt. The People’s theory of manslaughter in the first degree, as charged by the court, was that defendant, with intent to cause serious physical injury to Lisa, injured her and [170 A.D.2d 63] then failed to obtain medical assistance for her, causing her wrongful death. Under the court’s charge, the People were required to prove both the act of commission and omission and the requisite mens rea–intent to cause serious physical injury–with respect to each.

The Penal Law specifically provides that criminal responsibility may be based on an omission, defined as a “failure to perform an act as to which a duty of performance is imposed by law.” The court stated that an omission may be the predicate for a homicide conviction. The Court opined that Penal Law recognizes that one may, by an omission, act intentionally; it provides that a “person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct” (Penal Law § 15.05[1] and defines the term “conduct” to include an act or omission (id., § 15.00[4]. In New York, parents have a “nondelegable affirmative duty” to provide adequate medical care to their children. (Matter of Hofbauer, 47 N.Y.2d 648, 654-55, 419 N.Y.S.2d 936, 393 N.E.2d 1009; see, Family Court Act § 1012[f][i][A]; see, also, Penal Law § 260.10[2].) When a child dies because of a parent’s failure to fulfill that duty, the parent is held accountable for the homicide.

The Court stated that since the conviction is based entirely on circumstantial evidence, the task is to determine whether the conclusion of guilt is consistent with and flows naturally from the proven facts, which, viewed as a whole, must exclude every hypothesis but that of guilt to a moral certainty. Review of the record reveals that the only reasonable conclusion was the one that even defendant’s own expert reached, i.e., that the girl’s death was a homicide, resulting from child abuse. Not surprisingly, defendant has abandoned his attempts to attribute the girl’s death to some innocent cause. The Court concluded that the record also yields powerful evidence that it was defendant who was responsible for the girl’s death.

Losing a loved one from another person’s wrongful act can be difficult. We can assist you to claim what is due upon you. Our New York Wrongful Death Lawyer from Stephen Bilkis & Associates has offices situated within New York Metropolitan area, including Corona, New York.

Please be informed that our New York Wrongful Death Lawyer from Stephen Bilkis & Associates can recommend New York Brain Injury Lawyers to walk through with you in your case.

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