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People v. Weinreich9/12/2005
nd have a substantial impact on the fairness of the trial. Although I do not believe the "may have endangered" language of the instruction failed (in any respect, much less one having a substantial impact on the fairness of the trial) to properly convey the statutory definition of child abuse to the jury, the majority's resort to 20 and 30-year-old interpretations of previous, and vastly different, versions of the statute, responding at the time to wholly dissimilar legal challenges, to my mind should alone be sufficient to demonstrate that any deficiency in the instruction (should one exist) was not one that should have been readily apparent to a trial judge, without having it brought to his attention by an interested party.
Finally, unlike the majority I consider it clear that a defendant charged with the statutory offense of child abuse, by recklessly causing an injury to the life or health of his child, who was indisputably killed when she was thrown from her unbelted position in his lap while he was driving, has been put on notice that he may have to defend against the more specific allegation of recklessly permitting her to be unreasonably placed in a situation that may have endangered her life or health. I would therefore find that the court of appeals not only applied an erroneous legal standard but also reached the wrong result.
I respectfully dissent.
I am authorized to state that JUSTICE KOURLIS and JUSTICE RICE join in this dissent.
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