Opinion
2015–11725 Ind. No. 5002/14
04-21-2021
The PEOPLE, etc., respondent, v. Christine BOYLAN, appellant.
Scott Lockwood, Deer Park, NY, for appellant. Letitia James, Attorney General, New York, N.Y. (Nikki Kowalski and Matthew Keller of counsel), for respondent.
Scott Lockwood, Deer Park, NY, for appellant.
Letitia James, Attorney General, New York, N.Y. (Nikki Kowalski and Matthew Keller of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (John B. Collins, J.), rendered October 28, 2015, convicting her of falsifying business records in the first degree (two counts) and wilful violation of the Public Health Law, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In the early morning hours of October 26, 2012, a resident at the Medford Multicare Center for Living (hereinafter Medford), a nursing home, died. The resident died after a respiratory therapist neglected to follow a physician's order to place the resident on a ventilator while she was in bed, and other staff members ignored approximately two hours of visual and audible alarms signaling that the resident was in respiratory distress. The defendant was alleged to have participated in a cover-up in connection with investigations by Medford and the New York State Department of Health of the alleged neglect that led to the resident's death.
The defendant moved to sever her trial from that of all the codefendants, and her motion was granted to the extent that her trial was severed from the trial of several of the codefendants and a separate jury presided over the trial of another codefendant. After trial, the defendant was convicted of two counts of falsifying business records in the first degree and wilful violation of the Public Health Law.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that a severance of the trial from all the codefendants was warranted is without merit. Severance motions are addressed to the sound discretion of the trial court (see People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 ). "Severance is compelled only where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt" ( People v. Martins, 306 A.D.2d 423, 423, 760 N.Y.S.2d 874 ; see People v. Cardwell, 78 N.Y.2d 996, 997–998, 575 N.Y.S.2d 267, 580 N.E.2d 753 ). Here, initially, the Supreme Court granted the defendant's motion for a severance with respect to several of the codefendants. As to the remaining codefendants, the core of each of their defenses was not in irreconcilable conflict with that of the defendant (see People v. Turnbull, 52 A.D.3d 747, 860 N.Y.S.2d 189 ; cf. People v. Mahboubian, 74 N.Y.2d at 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 ). As the proof against the defendant was supplied by the same evidence, only the most cogent reasons would warrant a severance (see People v. Bornholdt, 33 N.Y.2d 75, 87, 350 N.Y.S.2d 369, 305 N.E.2d 461 ). The defendant failed to provide any such cogent reason to warrant full severance.
The Supreme Court properly declined to give a missing witness charge, as the defendant failed to show that any uncalled witness was available and under the control of the prosecution, had material knowledge, and would be able to provide noncumulative testimony (see People v. Edwards, 14 N.Y.3d 733, 735, 899 N.Y.S.2d 65, 925 N.E.2d 867 ; People v. Locenitt, 157 A.D.3d 905, 907, 66 N.Y.S.3d 908 ).
The defendant's contention that the two counts of falsifying business records in the first degree are duplicitous is unpreserved for appellate review (see CPL 470.05[2] ; People v. Adams, 140 A.D.3d 1179, 1180, 35 N.Y.S.3d 392 ), and, in any event, without merit (see People v. Bauman, 12 N.Y.3d 152, 878 N.Y.S.2d 235, 905 N.E.2d 1164 ; People v. Kaid, 43 A.D.3d 1077, 842 N.Y.S.2d 55 ).
MASTRO, A.P.J., HINDS–RADIX, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.