New York Law Review

Tag: Shaken baby syndrome

  • People v. D’Alessandro, 25 N.Y.3d 1035 (2015): Ineffective Assistance of Counsel and the Failure to Present Expert Testimony

    People v. D’Alessandro, 25 N.Y.3d 1035 (2015)

    Ineffective assistance of counsel may be found when an attorney’s strategic decision not to present expert testimony is based solely on the quantity of expert testimony presented by the prosecution, rather than a legitimate tactical choice.

    Summary

    The New York Court of Appeals reversed the Appellate Division’s denial of a defendant’s motion to vacate her conviction for assault and endangering the welfare of a child. The defendant claimed ineffective assistance of counsel, arguing that her attorney’s failure to present expert testimony to rebut the prosecution’s shaken baby syndrome (SBS) theory was not a strategic decision but rather a result of the volume of expert testimony presented by the prosecution. The Court held that the defendant’s claims warranted a hearing to determine if the attorney’s failure to call an expert constituted ineffective assistance, especially because casting doubt on the prosecution’s medical proof was the crux of the defense. The Court found the attorney’s justification for failing to call an expert, that it would be pointless due to the number of prosecution experts, was not a legitimate tactical choice.

    Facts

    In 2006, the defendant was charged with assault and endangering the welfare of a child, concerning injuries sustained by a seven-month-old infant in her care. At trial, the prosecution argued the infant suffered from shaken baby syndrome (SBS). They presented 13 medical professionals, including nine expert witnesses. The defense cross-examined the prosecution’s witnesses, suggesting the injuries were caused by a “re-bleed” of an earlier trauma, but did not present its own expert testimony to contradict the SBS diagnosis. The defendant was found guilty. After her appeal, she moved to vacate the conviction based on ineffective assistance of counsel, newly discovered evidence, and actual innocence. The trial court and Appellate Division denied the motion without a hearing.

    Procedural History

    The defendant was found guilty in 2009. The Appellate Division affirmed the conviction in 2010, which was followed by a denial of leave to appeal to the Court of Appeals. In 2012, the defendant moved to vacate her conviction under CPL 440.10, which was denied by the Supreme Court and affirmed by the Appellate Division. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the defendant’s motion to vacate her conviction based on ineffective assistance of counsel should have been granted without a hearing.

    Holding

    1. Yes, because the defendant’s proof raised a question as to whether the counsel’s alleged deficiencies were the result of a reasonable, but unsuccessful, trial strategy or whether the counsel failed to pursue the minimal investigation required under the circumstances.

    Court’s Reasoning

    The Court of Appeals cited that the defense counsel’s decision not to call an expert witness when the prosecution’s case hinged on expert testimony, and the counsel based his decision on the number of experts called by the prosecution, created a legitimate question as to the counsel’s effectiveness. The Court noted that while a hearing is not invariably required on a CPL 440.10 motion, in this case, the defendant presented statements from two experts describing additional lines of inquiry that would have been advantageous and an affidavit from her sister stating the counsel found it pointless to call an expert given the volume of expert testimony presented by the prosecution. The Court found that it was exceedingly rare that a defense attorney’s strategic decision not to present expert testimony amounts to ineffective assistance of counsel but, in this instance, it warranted further inquiry. The Court applied the principles of Strickland v. Washington and People v. Baldi to determine if counsel’s actions fell below the standard of a reasonable attorney.

    Practical Implications

    This case underscores the importance of providing expert testimony, especially when challenging the prosecution’s expert-driven arguments. Attorneys must carefully consider the strategic reasons for not calling an expert. A decision solely based on the quantity of opposing expert testimony may be viewed as ineffective assistance. The case also highlights the need for a thorough investigation, which includes consulting with potential experts, and making a reasonable tactical decision, not a decision that is “pointless.” Subsequent cases involving ineffective assistance claims will likely scrutinize the rationale behind decisions not to present expert testimony, particularly in cases where such testimony is central to the defense.

  • People v. Wong, 81 N.Y.2d 600 (1993): Criminal Liability for Omission Requires Awareness of the Harmful Act

    People v. Wong, 81 N.Y.2d 600 (1993)

    A person’s criminal liability for failing to act (omission) requires proof that they were aware of the harmful act and understood the risk of failing to intervene.

    Summary

    Eugene and Mary Wong were convicted of manslaughter and endangering a child after a baby in their care died from shaken baby syndrome. The prosecution argued that even if one Wong didn’t shake the baby, they were still liable for failing to seek medical help. The New York Court of Appeals reversed both convictions. The court found insufficient evidence to prove that the “passive” defendant was aware that the baby had been violently shaken or understood the risk to the infant if they did not seek medical care. This case highlights the requirements for establishing criminal liability based on a failure to act when the actual perpetrator of the harm is unknown.

    Facts

    The Wongs were hired to provide 24-hour care for three-month-old Kwok-Wei. Kwok-Wei’s parents worked long hours and needed full-time childcare. One morning, Mary Wong called Kwok-Wei’s father to report that the baby was dead and “turned black.” Eugene Wong also called 911. The Wongs made inconsistent statements to the police about the events leading up to the baby’s death. An autopsy revealed that Kwok-Wei died from injuries consistent with shaken baby syndrome. There were no external injuries.

    Procedural History

    The Wongs were indicted and tried for manslaughter and endangering the welfare of a child. The trial court denied a motion to dismiss, arguing both could be found guilty if one shook the baby and the other failed to intervene. The jury found both guilty on all counts. The Appellate Division modified the convictions, dismissing first-degree manslaughter, but upheld the other convictions. The New York Court of Appeals reversed, dismissing the indictment against both defendants.

    Issue(s)

    Whether the evidence was sufficient to establish that the “passive” defendant was aware that the infant had been violently shaken and understood the risk in failing to seek medical treatment.

    Holding

    No, because the evidence failed to establish that the “passive” defendant was aware of the abusive act or understood the risk to the infant if they did not seek medical attention.

    Court’s Reasoning

    The Court of Appeals acknowledged that criminal liability can be based on an omission (failure to act) under Penal Law § 15.10, but only if there’s a legal duty to act. They affirmed that caregivers have a duty to seek medical care for children. However, the court emphasized that to convict the “passive” defendant, the prosecution needed to prove beyond a reasonable doubt that this defendant was personally aware of the shaking and understood the risk to the infant. The court found the evidence insufficient to prove the “passive” defendant’s awareness. The prosecution relied on the Wongs’ statements that they were both awake and tending to the baby during the period when the shaking likely occurred. However, the court found this too tenuous, noting neither defendant said they were *continuously* together. The court reasoned that one defendant could have left the room, and the abuser may have waited for this to occur before shaking the baby. The court dismissed arguments that the size of the apartment was relevant, as the “passive” defendant could have been in another room. The Court stated, “Manifestly, the ‘passive’ defendant’s ‘mere presence’ in the Wongs’ apartment at the time of the crime is insufficient to support a finding of criminal liability”. The court concluded that convicting both defendants when only one demonstrably committed the crime violated principles of personal accountability and the presumption of innocence.