Sunday, December 16, 2007
Appellate Post-Mortem?: New York Man To Appeal Manslaughter Conviction Based Upon Medical Examiner's Conclusions
Edwin Tirado was recently convicted of second degree manslaughter in a New York court in connection with the death of Jonathan Carey, a 13 year-old autistic boy. Carey was on an outing in a van with another child from the O.D. Heck Developmental Center in Schenectady when Tirado, a health worker, allegedly improperly restrained him after he acted out. According to police, Jonathan thereafter stopped breathing, and Tirado continued to restrain him while the driver of the van, Nadeem Mall, continued driving around upstate New York, "doing errands, shopping and buying beverages." Tirado and Mall allegedly waited 90 minutes before reporting the medical emergency, too late to save Carey.
Tirdao was convicted in part based upon the testimony of a medical examiner as to the cause of death. At Tirado's sentencing, Carey's parents gave victim impact statements about the immeasurable pain they had suffered and asked that the court impose the maximum sentence. Their statements were apparently persuasive as the court sentenced Tirado to five to fifteen years imprisonment, the maximum sentence for second degree manslaughter. If Tirado has his way, however, he won't serve a day of this sentence.
Tirado's attorney has contended that he will file an appeal on Monday because "[t]he medical examiners testimony and opinion as to the cause of death was based on hearsay." While it is unclear from the articles discussing the case what hearsay the medical examiner allegedly used in reaching his conclusion, it should be noted that the simple fact that the examiner relied in part on hearsay would not necessarily render his conclusion improper.
Pursuant to Federal Rule of Evidence 703, experts can base their opinions on inadmissible evidence if experts in their particular field reasonably rely on that type of evidence in forming opinions. While New York does not have a statutory counterpart to this federal rule, its cases have come to a similar conclusion. In People v. Yates, 290 A.D.2d 888, 889 (N.Y.A.D. 3 Dept. 2002), a New York state appellate court found that "an expert may base his opinion on material outside the record, so long as it is of a type reasonably relied upon by experts in the field in forming their professional opinions." The same court later relied upon this language in finding that a forensic expert properly relied upon out-of-court statements in forming his conclusion about the victim's cause of death. See People v. Odell, 26 A.D.3d 527, 529 (N.Y.A.D. 3 Dept. 2006). Thus, there is good reason to believe that Tirado's conviction will be affirmed.