State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   106479
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

GARY L. WAITE,
                    Appellant.
________________________________


Calendar Date:   October 13, 2016

Before:   Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

                             __________


     David M. Abbatoy Jr., Rochester, for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.

                             __________


Garry, J.P.

      Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered December 12, 2013, upon a verdict
convicting defendant of the crimes of murder in the second
degree, manslaughter in the second degree and endangering the
welfare of a child.

      Defendant's 15-month-old child sustained fatal head
injuries while he was in defendant's exclusive care. Defendant
was thereafter charged with murder in the second degree,
manslaughter in the second degree and endangering the welfare of
a child. In March 2012, the People moved to disqualify
defendant's two retained attorneys due to a conflict of interest.
One of the attorneys withdrew and, following a hearing, County
Court disqualified the second attorney with defendant's consent.
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Thereafter, defendant's new attorney advised the court that he
had previously represented the child's mother. At a hearing, the
mother testified that she had shared information with this
counsel that she considered to be secret. Counsel objected to
disqualification, and defendant stated that he was willing to
waive the potential conflict of interest, but the court
nevertheless deemed counsel to be disqualified and assigned a
fourth attorney to represent defendant. Thereafter, the court
granted defendant's motion to dismiss the charge of murder in the
second degree on the ground that there was insufficient evidence
to establish depraved indifference. Upon the People's appeal,
this Court reversed and reinstated the charge (108 AD3d 985, 987
[2013]). Following a jury trial, defendant was convicted as
charged and sentenced to an aggregate prison term of 25 years to
life. Defendant appeals.

      Defendant contends that the evidence of indifference and
recklessness was legally insufficient to support his conviction
for depraved indifference murder. As for indifference, the
People were required to show that defendant's mens rea when the
crime occurred was one of "an utter disregard for the value of
human life – a willingness to act not because one intends harm,
but because one simply doesn't care whether grievous harm results
or not" (People v Suarez, 6 NY3d 202, 214 [2005]; see People v
Feingold, 7 NY3d 288, 296 [2006]). The People established at
trial that defendant was alone with the child from approximately
11:00 a.m. to 6:00 p.m., at which point his sister arrived, found
the child unresponsive and directed defendant to call 911.
Defendant initially told police that the child had fallen off a
couch and cut his lip between 2:00 p.m. and 3:00 p.m., that he
called a friend who often helped him care for the child for
advice, and that she told him not to seek medical assistance yet
and to keep the child awake. After the child fell, according to
defendant, he played with a stuffed animal and later watched
television while seated in a chair, getting up a few times to
come over to defendant.

      Defendant told police that shortly before 6:00 p.m., the
child stood up, fell forward and hit his face on a metal chair.
He stated that the child was bleeding and gasping for air, and
his eyes were rolling back in his head. Defendant called the
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friend and his mother to tell them that the child was "hurt bad,"
and they dispatched his sister to his home. He stated that he
did not call for medical assistance because "[he] was panicking
and [emergency personnel] wouldn't have understood [him]."

      Later that evening, defendant amended his statement,
acknowledging that he had not previously told the police the full
truth. He stated that the child cried for 20 or 30 minutes after
the initial fall from the couch. When the child "wouldn't stop
bugging out," defendant became frustrated and "tossed" him to the
other end of the couch; the child bounced off and his head hit
the hardwood floor. According to defendant, the child then
"mellowed out" and "looked tired and not like [he] usually
act[ed]." In a separate conversation that same evening,
defendant told an emergency room nurse that the child "wasn't
acting right" after he fell out of a chair, and that he heard the
child "make a weird noise and was moving weird." The nurse
testified that, based upon defendant's description and
demonstration, she identified the strange sound as agonal
breathing and the unusual movements as posturing, both of which
were signs of severe brain injury.

      The uncontradicted testimony of the People's medical
witnesses challenged the credibility of defendant's explanations
for the child's catastrophic head injuries, which included a
fractured skull, a subdural hematoma and severe swelling of the
brain. The treating emergency room physician, the medical
examiner and a pediatric neurosurgeon opined that these injuries
could not have resulted from falling or bouncing off a couch or
chair. Instead, such injuries were caused by significant force,
such as that of a car crash or a fall from an upper story; the
emergency room physician testified that he had seen comparably
severe injuries caused, in one case, by an elevator that fell on
a child's head and, in another, by a collapsing gravestone. The
medical testimony further called into question defendant's claim
that the child was able to play, watch television, stand up and
walk after the initial injury. The physicians opined that the
child probably never regained consciousness; if he did so
briefly, he would have been in severe pain and would quickly have
become unresponsive and then comatose. The medical examiner
testified that the child's increasing lethargy and
                              -4-                106479

unresponsiveness – caused by the swelling of his brain as time
passed – would have been "very obvious" to an average layperson.
He further testified that several injuries on the child's face,
arms and legs – which included facial bruises consistent with
being punched in the eye, other bruises on his face and upper
thighs, a bruise on his arm consistent with being grabbed, and a
facial laceration that would have required sutures if he had
survived – had occurred contemporaneously but could not all have
resulted from a single blow. The neurosurgeon testified that the
time interval between the infliction of these injuries and the
arrival of medical assistance could have been up to three hours.

      This evidence was supplemented by the testimony of two
neighbors who heard a loud banging sound in defendant's apartment
that afternoon. One neighbor, who lived below defendant's
apartment, said that the sound was so loud that it frightened his
children. The other neighbor, who was outside, stated that he
heard a loud bang as if "someone was carrying a couch and dropped
it on a wooden floor" followed by a scream like "a terrifying kid
in anguish" that was not a child's normal cry. Thereafter, he
heard more bangs, interrupted by crying and screaming that
indicated to him that a child "was being hurt." After a total of
seven or eight bangs, the child made no more sounds.

      Taken as a whole, the jury could rationally have concluded
that defendant brutally assaulted the child because he did not
stop crying after the initial, relatively minor fall from the
couch. This attack occurred – by defendant's own account –
sometime between approximately 2:30 p.m. and 3:30 p.m. The jury
could further have concluded that defendant's failure to seek
medical assistance for the child during the hours that followed –
despite his admitted awareness that the child was behaving
abnormally and his knowledge of "the brutal origin of the
injuries and the force with which they were inflicted" –
displayed the wanton, uncaring mental state that constitutes
depraved indifference (People v Barboni, 21 NY3d 393, 402 [2012];
see People v Nelligan, 135 AD3d 1075, 1077-1078 [2016], lv denied
27 NY3d 1072 [2016]; People v Keegan, 133 AD3d 1313, 1316 [2015],
lv denied 27 NY3d 1152 [2016]; People v Johnson, 127 AD3d 451,
451-452 [2015], lv denied 26 NY3d 1009 [2015], cert denied ___ US
___, 136 S Ct 1669 [2016]; People v Griffin, 48 AD3d 1233, 1235
                              -5-                106479

[2008], lv denied 10 NY3d 840 [2008]; People v Ford, 43 AD3d 571,
573-574 [2007], lv denied 9 NY3d 1033 [2008]; see also People v
Dallas, 119 AD3d 1362, 1365-1366 [2014], lv denied 24 NY3d 1083
[2014]).

      Contrary to defendant's argument, the fact that he called
and texted a friend several times during the afternoon for advice
on caring for the injured child does not require a different
conclusion. The uncontradicted evidence established that
defendant dissembled the circumstances and the child's condition
in these communications, failing to tell the friend that anything
more serious than falling off the couch had happened to the child
or that his behavior was unusual. The jury could reasonably have
concluded that defendant was seeking to minimize the gravity of
the child's condition rather than genuinely attempting to obtain
assistance, and that his intent was to protect himself rather
than the child. As we said when this case was previously before
us, "a defendant who inflicts severe injuries upon a child and
then attempts to weave a story over several hours to save himself
while the child suffers is hardly less callously indifferent to
the child's life than one who waits and eventually
dispassionately reports the child's condition" (108 AD3d at 987).

      Further, the fact that defendant was panic-stricken and
distraught by the time he finally did summon aid does not alter
the case. The People were required to show that defendant had
the necessary mens rea of callous indifference when the crime
occurred, not at all times thereafter. The jury could rationally
have concluded that he had the requisite mental state of callous
indifference during the attack and the period in which he failed
to seek medical assistance or tell the truth to his friend about
the child's condition, and that he did not become distraught
until he realized that the grievous harm he had inflicted could
not be concealed (compare People v Barboni, 21 NY3d at 402).

      Defendant next contends that the severity of the child's
injuries established that he acted with an intent to kill and
that the People therefore failed to prove that he acted with the
recklessness required for a conviction pursuant to Penal Law
§ 125.25 (4). As he concedes, this claim is unpreserved.
Nevertheless, defendant also asserts that the verdict was against
                              -6-                106479

the weight of the evidence, which requires this Court to
determine whether each element of the charged crimes was proven
beyond a reasonable doubt (see People v Danielson, 9 NY3d 342,
348-349 [2007]; People v Harden, 134 AD3d 1160, 1160 [2015], lv
denied 27 NY3d 1133 [2016]). Upon review, we find no merit in
the claim. The gravity of the injuries sustained by this
vulnerable 15-month-old child, without more, does not establish
that "[defendant] intended to cause death or serious physical
injury, in the sense of having that as a conscious objective or
purpose" (People v Barboni, 21 NY3d at 404). Defendant did not
use a gun or other means that inherently suggest an intent to
kill (see id.), nor was there proof that he had "any motive,
animosity or ill-will" that might have led him to form the
purpose of killing the child (People v Bowman, 48 AD3d 178, 182
[2007], lv denied 10 NY3d 808 [2008]; accord People v Griffin, 48
AD3d 1233, 1235 [2008], lv denied 10 NY3d 840 [2008]). We find
that the verdict was not against the weight of the evidence.1

      Finally, defendant's contention that County Court abused
its discretion by disqualifying his counsel is unavailing.
Initially, the record belies defendant's contention that the
court failed to inform him that he could waive the conflict
created by the fact that his second attorney had previously
represented a potential trial witness. Instead, the court
plainly advised defendant that he could continue to be
represented by this counsel if he so chose, although also noting
that counsel had advised against this course of action, and that
the court agreed it was unwise. Defendant's response – that he
would accept his counsel's advice and seek new representation by
the Public Defender's office – clearly indicated his
understanding that he had a choice.

      As for the disqualification of the third attorney, "[a]
criminal defendant's right to counsel of his or her choice is not


    1
        We reject defendant's alternative argument that his
counsel was ineffective for failing to preserve the intent issue,
as failing to pursue a meritless claim does not constitute
ineffective assistance (see People v Kindred, 100 AD3d 1038, 1041
[2012], lv denied 21 NY3d 913 [2013]).
                              -7-                106479

absolute and may properly be circumscribed where defense
counsel's continued representation of the defendant would present
a conflict of interest" (People v Robinson, 121 AD3d 1179, 1180
[2014]).   When a conflict exists, a court must balance the
defendant's constitutional right to the effective assistance of
counsel against his or her right to be represented by the counsel
of his or her choice, and the decision may be challenged on
constitutional grounds no matter which alternative it selects
(see People v Watson, 26 NY3d 620, 624 [2016]; People v
Carncross, 14 NY3d 319, 327 [2010]; People v Gomberg, 38 NY2d
307, 312-313 [1975]). As it is particularly difficult to predict
the potential implications of a conflict of interest before a
trial, a "court [is] allowed substantial latitude in refusing
waivers of conflicts of interest not only in those rare cases
where an actual conflict may be demonstrated before trial, but in
the more common cases where a potential for conflict exists which
may or may not burgeon into an actual conflict as the trial
progresses" (Wheat v US, 486 US 153, 163 [1988]).

      Here, this counsel's prior representation of the child's
mother was limited to a few brief communications and appearances
in a child support violation proceeding. Counsel stated that he
had learned no confidential information that could affect his
representation, and defendant stated that after discussing the
potential conflict, he was willing to waive it. However, the
mother testified that she had shared information with counsel
that she considered to be secret, and she refused to waive the
confidentiality of this information or agree to counsel's
representation of defendant. She further stated that she was
already uncomfortable about the prospect of testifying as a
hostile witness at the trial and that counsel's continued
representation of defendant would make this more difficult for
her. In light of all the circumstances, and particularly
considering the unknown nature of the confidential information
that the mother had provided and the concomitant difficulty of
predicting its potential impact upon the trial, disqualification
of this counsel was "a proper exercise of [County Court's] broad
discretion" (People v Robinson, 121 AD3d at 1180; see People v
Watson, 26 NY3d at 625-626; People v Carncross, 14 NY3d at 330;
People v Gordon, 272 AD2d 133, 134 [2000], lv denied 95 NY2d 890
[2000]; see also People v Hall, 46 NY2d 873, 874-875 [1979], cert
                             -8-                   106479

denied 444 US 848 [1979]).

     Egan Jr., Rose, Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court