Per Curiam.
On June 26, 1988 the parents of three-month-old Kwok-Wei Jiang responded to an advertisement run by defendant Mary Wong in a New York Chinese language newspaper for a 24-hour babysitting service. The Jiangs, who both worked 12 hours a day, Monday through Saturday, visited the defendants' one-bedroom apartment on East 93rd Street and gathered information about the service. They were told that the baby would be cared for primarily by defendant Mary Wong, who held herself out as a nurse who had previously worked in Hong Kong, but that the child would also receive care from her husband, defendant Eugene Wong, who was employed by the United Nations as a statistician. The baby would sleep in a crib directly next to the defendants' bed. Also living in the apartment was the Wongs' three-year-old son, Andrew, who appeared to be well cared for. The apartment was clean and neat and the Jiangs were sufficiently impressed with the arrangements so as to leave their infant in defendants' care. On the next Sunday, July 3, they visited their baby and, though they found him to be somewhat subdued, were not so concerned as to terminate the relationship.
On July 7, 1988, between 6:00 and 6:30 A.M., Mary Wong called Mr. Jiang and told him that his baby was dead. She stated that the baby had cried continually from midnight until 2:00 A.M., that later he was fed some "gripe water" (a dietary supplement which Mrs. Jiang had obtained from a Chinese pharmacy and given to defendants), and went to sleep. At that point both defendants went to sleep. When they awakened, the child had turned black. Mrs. Wong asked that Mr. Jiang come over to her apartment, but Mr. Jiang, who could scarcely believe what he had heard, instead tried to get in touch with his wife, who was working in New Jersey.
At 6:20, Eugene Wong placed a call to 911, requesting an ambulance for an unconscious child. Police Officers Burdett and Lopez immediately responded. When they arrived, both Mr. and Mrs. Wong were fully dressed, and both were noticeably calm. Mr. Wong, who had answered the door, told them he had called for an ambulance, not the police. He allowed them into the apartment and there, five feet from the front door, the officers observed a baby carrier holding Kwok-Wei Jiang. The officers could see that the baby, who was stiff and whose face was discolored, was already dead. The baby's legs were stiffly flexed in a manner conforming to the carrier. Downstairs, they gave the child to the paramedics, who had just arrived. According to paramedic Barbara Taylor, the child was cyanotic, i.e., blue from lack of oxygen, and rigor mortis had already set in.
At the hospital, Eugene Wong informed the paramedics that he and his wife had fed the baby, who had not been sick, at 1:00 or 2:00 A.M. and the child had quieted down. In the morning his wife had checked the baby and found that he was not breathing. Mr. Wong also spoke to the doctor, reporting that Kwok-Wei had awakened at midnight and cried for a long time and that both he and his wife had "attended the baby to see what was wrong." The child, who did not have diarrhea, vomiting, or fever, took no food, but, after 2 to 2 1/2 hours, had stopped crying and "went to bed". At that point defendants had also gone to bed. At 6:00 A.M. one of them (the doctor did not recall which one) checked the baby and found that he was not breathing and had no heartbeat.
At the hospital, Officer Lopez called Mrs. Wong, who had remained at home with her son, to find out the baby's name and age, which Mr. Wong had not known. In addition to supplying the requested information, Mrs. Wong gave the officer the baby's parents' telephone number and informed the officer that the defendants had been caring for the baby for 10 days and that he had been sleeping in the bedroom. She then asked if the baby had died, and Lopez told her that it had. Lopez then called Mr. Jiang but was unable to communicate with him because of his limited English. Lopez therefore called Mrs. Wong back and asked her to call Mr. Jiang to inform him of what had happened. According to Mr. Jiang, when Mrs. Wong called him it was approximately one hour after the original call. She asked him why he had not come over, and he said he had been unable to locate his wife. He then asked if his child was really dead, and this time Mrs. Wong stated that she did not know, and informed him that the child had been taken to the hospital in an ambulance. Mr. Jiang then reached his wife at work and they both went to the hospital.
That night Mrs. Wong called Mrs. Jiang and told her that she and her husband had been up with the baby in the living room from midnight until he finally fell asleep at about 2:00 or 2:30 A.M. She tried to feed him milk and water but he would not accept either, but she finally gave him some gripe water. When he finally fell asleep they brought him into the bedroom and also went to sleep. Mrs. Jiang asked Mrs. Wong why, if the baby was crying so much, she had not taken him to the hospital, and Mrs. Wong replied that nothing appeared to be wrong with the baby and if she had taken him to the hospital the doctor would have "scold[ed]" her. When she awakened in the morning the baby's face had turned black. In a later conversation however, Mrs. Wong told Mrs. Jiang that she had seen that the baby had had "cramps" and had been "shaking involuntarily." Mrs. Wong informed Mrs. Jiang that the probable reason for these symptoms was that Mrs. Jiang had used birth control pills or had taken Chinese herbal medicine.
An autopsy was performed on July 9, 1988. It was determined that Kwok-Wei had died of various internal injuries to the brain, including rupture of the blood vessels causing subdural hematoma. There were no signs of external injury to the skull and it was undisputed that the injuries could be attributed solely to "shaken baby syndrome," a type of injury occasionally seen in children under one year old and caused solely by the accelerating and decelerating forces to which the child would be subjected as a result of having been violently shaken. The baby also had two confluent bruises on the upper buttocks which were unrelated to the head injuries and did not contribute to his death. These bruises, which were the only outwardly visible signs that the baby had been abused, had been caused by a blow administered within 24 hours of death.
On the same day that the autopsy was conducted, the defendants were arrested. At the time of his arrest, Mr. Wong spontaneously suggested to the arresting officer that Andrew, his three-year-old son, had caused the baby's death, stating, "[Y]ou're going to find out that he [Andrew] was involved, that he did it, he's like a little Rambo".
Evidence was also introduced at trial concerning two other infants who, while in the Wongs' care, had suffered injuries requiring hospitalization. In March 1988, 18-month-old Kevin Hung, when taken by his father to the hospital after spending a month with the Wongs, was found to have a second degree burn on the sole of his foot, bruises on his face and body, and fractures, one recent and one several weeks old, in each leg. As a result, he was hospitalized for 13 days. Earlier, on a visit, Kevin's father had observed a burn on the child's mouth, but had dismissed it as an accident when Mrs. Wong told him that Kevin had tried to taste some hot soup which she had left out to cool. In June of 1988, shortly before Kwok-Wei Jiang came into the Wongs' care, 1 1/2-month-old Jenny Chan was taken to the hospital by her father when he visited her at the Wongs' and saw that her face was badly discolored and that she was completely unresponsive. Mrs. Wong claimed that she had found the baby in that condition when she awoke and suggested that it was due to an "internal problem." Jenny was hospitalized for three days.
Both defendants were indicted on counts of manslaughter in the first degree. (Penal Law § 125.20 — with intent to cause serious physical injury to another causes the death of such other), manslaughter in the second degree (Penal Law § 125.15 — recklessly causes the death of another) and endangering the welfare of a child (Penal Law § 260.10 — knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a child). After a trial during which the defense sought to attribute the infant's death to an accident at the hands of their three-year-old son, both defendants were convicted of each of the aforementioned counts in the indictment.
As a threshold matter, we reject defendants' argument that the jury's finding that the death of Kwok-Wei was not accidental was against the weight of the evidence. In that regard the expert testimony ruled out the possibility, raised by defendants, that the injuries could have been inflicted by the Wongs' three-year-old son and, indeed, defendants have not pursued that argument on appeal. Moreover, we find that the prosecution's expert testimony overwhelmingly demonstrated that these injuries could not have been inflicted upon the infant without the awareness and conscious disregard that they created a substantial and unjustifiable risk of death (Penal Law § 15.05; § 125.15 [1]). The dissent points to certain expert testimony which, standing on its own, indicates that an infant could be innocently shaken so hard as to cause death. However, the jury, when confronted by varying expert testimony, is entitled to accept that testimony which it finds to be credible and reject that which it does not. In this case, we find that the jury's verdict was fully justified by that testimony which compellingly showed that, in order to cause the injuries inflicted here, it was necessary for the perpetrator to shake the three-month-old infant in such a violent manner as to make obvious to a reasonable person that there was a substantial risk of death. Such testimony included the opinion of one medical expert that the shaking had to be "severe" and "repeated" as well as conducted with "very substantial force" and the testimony of another that the force involved in whipping the child's head back and forth must be "very considerable" or "violent." The jury was fully entitled to accept this testimony and reject that which indicated that the injuries did not give rise to the inference of reckless disregard of death. Indeed, as one expert testified, if death could be inflicted easily in this manner, shaken baby syndrome would be a very common, rather than an extremely rare, cause of death, as infants are frequently subjected to accidents and falls or even playful tossing which cause the type of whiplash movement of the head involved in the syndrome but which are very seldom severe enough to cause the trauma which leads to death.
Thus, the nature of the injury itself, when seen in the light of the expert testimony, fully supports the jury's finding that the child's death was not an accident and was a result of the culpable act of one of the defendants. Moreover, further support for the prosecution's argument that these injuries were not accidentally caused is provided by the evidence that Kwok-Wei had a deep bruise on his lower back as well as by the fact that other children entrusted to the Wongs' care had been subjected to abuse (see, People v Sims, 110 A.D.2d 214, lv denied 67 N.Y.2d 657).
However, while the evidence overwhelmingly demonstrates the existence of a criminally reckless disregard of a risk of death, which is the culpable mental state required for a conviction of manslaughter in the second degree, with respect to the count of manslaughter in the first degree we find that, insofar as the jury necessarily went further and found that the shaking of the infant was inflicted with the intent to cause serious physical injury to him, its verdict was against the weight of the evidence. We note that, since we do not find that the jury was irrational in drawing the permissible inference from the shaking and the failure to seek medical care that the defendants intended the baby's injury as the natural and probable consequence of their conduct, we cannot agree with the dissent that the evidence of intent was insufficient as a matter of law (see, People v Steinberg, 79 N.Y.2d 673, 682-683). However, under the circumstances of this case, and particularly in view of the evidence indicating that the probable intention on the part of the person who shook the child was to quiet him, regardless of the consequences, and not necessarily to harm him, we find that a reasonable doubt exists as to whether this inference, standing alone as evidence of intent, is sufficiently strong to support the verdict and therefore find that this finding was against the weight of the credible evidence. Accordingly, the verdicts finding each defendant guilty of manslaughter in the first degree cannot stand.
With respect to the remaining convictions of manslaughter in the second degree and endangering the welfare of a child, defendants' primary argument on appeal is that their convictions must be vacated in toto since, regardless of the evidence establishing the culpability of the person who shook the child, the evidence was insufficient as a matter of law to establish that each was individually culpable.
The test for review of the sufficiency of a conviction based solely on circumstantial evidence is that the conclusion of guilt must be consistent with and flow naturally from the proven facts, and that those facts viewed as a whole must exclude to a moral certainty every conclusion other than guilt (People v Kennedy, 47 N.Y.2d 196). In this case, since the incident occurred while the baby was in the sole control of defendants in their home, with no one else present other than their three-year-old child, no specific proof could be obtained as to which defendant actually shook the baby. Thus, there could be no basis upon which to proceed against either defendant individually on the theory that he or she physically committed the homicidal act.
However, while criminal liability will normally be imposed only for a defendant's culpable act, it may also be imposed when a defendant, with the requisite mental culpability for the crime charged — in this case, recklessness — fails to perform an act as to which a duty of performance is imposed by law (see, Penal Law § 15.00; see also, discussion in People v Gladden, 118 Misc.2d 831). There is no question that the contractual babysitting agreement involved in this case, as well as the voluntary assumption of complete and exclusive care of a helpless child, created legal duties of care which were substantially coextensive with those which would be borne by a parent (see generally, People v Salley, 153 A.D.2d 704, lv denied 75 N.Y.2d 817; Annotation, Homicide — Lack of Medical Attention, 100 ALR2d 483, §§ 10, 18; 1 LaFave and Scott, Substantive Criminal Law § 3.3 [a] [3] [2d ed]). These clearly included the duties which the defendants were charged with breaching, i.e., the duty to provide necessary emergency medical care (see, People v Steinberg, 79 N.Y.2d 673, 680, supra; People v Northrup, 83 A.D.2d 737) as well as the duty to protect the child, if possible, from physical harm. Moreover, it is clear that in this case, both defendants legally owed such duties to the infant. Although Mrs. Wong was meant to be the primary caretaker, both defendants contractually assumed responsibility for the child's care at the time the babysitting arrangement was entered into. Further support for this conclusion is found in the fact that, according to both defendants' statements, on the night of Kwok-Wei's death, Eugene Wong was just as involved in "attending to" the crying child as was his wife. Under these circumstances, the prosecution was obliged to establish that the evidence excluded beyond a reasonable doubt any conclusion other than that each defendant was guilty, either by commission for having actually shaken the child, or by omission for failing to protect the child who was entrusted to his or her care.
Defendants' related arguments concerning the allegedly duplicitous nature of the indictment and the charge to the jury are not preserved for review and we see no reason to reach them in the interest of justice. Were we to reach them, we would find that they are without merit. The count under which defendants were convicted properly charged them with a single crime (cf., People v Keindl, 68 N.Y.2d 410), as defined by a single statutory section (Penal Law § 125.15). It did not, nor was it required to, specify the exact way in which each defendant committed the crime (see, People v Charles, 61 N.Y.2d 321; Bork v People, 91 N.Y. 5, 13). The court's charge, as based on the indictment, permitted the jury to find each defendant guilty of reckless manslaughter (Penal Law § 125.15) in any one of three alternate ways. The first consisted of having actually committed the reckless act leading to the death. The second and third each consisted of a criminal failure to perform a legally mandated duty, i.e., either having recklessly failed to prevent the other from harming Kwok-Wei, or having recklessly failed to obtain medical care.
Contrary to defendant's contention, neither the indictment nor the charge to the jury was improper for its failure to limit the jury's consideration to a single specific method by which each defendant could be held guilty of the crime. It is sometimes the case in prosecutions based in whole or in part on circumstantial evidence that precise details surrounding the crime must remain unknown. For example, a defendant may be charged and convicted on the alternate theories that he was either the principal actor or an accomplice, even though the People never prove which role he played (see, People v Benzinger, 36 N.Y.2d 29, 34; People v Hill, 198 N.Y. 64, 66). Similarly, where it is not possible to prove which defendant's act of violence actually caused the victim's death, each may at least be convicted of the attempted homicide (cf., People v Dlugash, 41 N.Y.2d 725). Thus, in this case, as long as the circumstantial proof forecloses any reasonable hypothesis that each defendant played any role other than one of the three culpable roles above specified, each of which is consistent with guilt and inconsistent with innocence, defendants may not be exonerated by the fact that it does not establish precisely which role each one played.
However, while the prosecution was not obligated to demonstrate which defendant played what role in Kwok-Wei's death, in order to satisfy its burden of proof it was required to prove beyond a reasonable doubt that whichever defendant was not guilty by commission was guilty by omission, in that he or she was aware of such facts as gave rise to a duty to act and he or she recklessly failed to do so, thereby causing the child's death. A close examination of the evidence shows that it does, in fact, foreclose any reasonable hypothesis concerning the events of the night in question other than that each defendant bore a culpable role in Kwok-Wei's death.
Initially, under the circumstances of this case, even if the proof had not demonstrated that each defendant was aware of the infant's injuries at the time they occurred (but see, discussion, infra), we find that each defendant's guilt of manslaughter in the second degree would still be overwhelmingly established in light of the evidence of the prior vicious acts of abuse perpetrated against other infants in this household as well as the evidence establishing that both defendants had been interviewed by a social worker concerning them, thereby establishing that the defendant who did not commit the prior acts of abuse was aware of them. The fact that the other defendant participated in the decision to continue the babysitting service and thereby allowed another infant to be exposed to such a risk demonstrates a blatant disregard for the welfare of the child. Furthermore, on the night in question, there is no question that both defendants were aware that the situation was one that was extremely likely to precipitate child abuse. Their statements established that Kwok-Wei had been crying continuously for two hours into the early morning hours. Under such circumstances, commonly known to be an exhausting, frustrating and emotionally wearing experience, to leave the child at the mercy of a known child abuser would be, without more, a conscious disregard of a substantial risk of death and a "gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05). Moreover, medical testimony supports the conclusion that the shaking occurred near the end of this period, as the child would have gone into a coma within no more than 30 minutes of the trauma.
We note that such a finding does not, as the dissent argues, represent an impermissible reliance, in order to prove a defendant's guilt of the crime at issue, on evidence that he or she committed a prior crime or bad act. In this case, neither defendant could have been convicted on such an impermissible theory since there was no evidence as to which one had committed the prior acts. The inference that we draw from the prior acts of abuse concerns not the guilt of the active defendant, but the knowledge of the passive defendant, i.e., that a person may be held criminally liable for entrusting a child to another person whose prior bad acts have demonstrated that to leave a child in his or her care is to put that child in substantial risk of death. Thus, even if the evidence had failed to demonstrate that the passive defendant was present and knew Kwok-Wei was being abused, that defendant's guilt of recklessly failing to perform the duty to prevent the other from harming Kwok-Wei would be established by the very fact of his or her failure to be present with the child at the time that the shaking occurred, i.e., after at least two hours of continuous crying, thereby consciously abandoning the child entrusted to his or her care to such a risk.
However, in this case, it is not necessary to rely on this theory, as much more was established. An examination of the evidence demonstrates that it proves beyond a reasonable doubt that each defendant must have been aware of the abuse at the time it occurred and that each contributed to causing the child's death. Initially, it should be pointed out that the jury was entitled to find, based on the expert testimony, that, for the very reasons that the shaking inflicted on this very young infant would necessarily have had to have been so violent so as to mandate a finding of recklessness as to the person who did it, it is clear that anyone who observed such conduct and failed to try to stop it, or, at least, seek immediate medical care, would share that mental state, since he or she would also, necessarily, have been aware of the substantial risk of death. Moreover, the expert testimony clearly established a causal link between this failure and the child's death, since it demonstrated that the child would probably have survived, had medical care been promptly provided.
Defendants, however, assert that such evidence is irrelevant since there was no evidence from which the jury could reasonably rule out the possibility that the injury could have been inflicted during the period they were both concededly awake between midnight and 2:00 to 2:30 A.M., at a point when one had left the room, or the possibility that, after they both went to bed, the baby started to cry again and was tended to by only one of them who, unbeknownst to the other, inflicted the fatal injury. Defendants thus argue that, if one of the defendants did not see the shaking, there was nothing to alert him or her to the risk of death or of a consequent duty to act and it was possible that the baby's subsequent lapse into coma could have been either unobserved completely or else reasonably interpreted as sleep.
Defendants' argument does not withstand the reasonable and logical inferences impelled by the evidence herein. First, given the physical characteristics of the small one-bedroom apartment and the child's presence in a crib abutting the bed where both defendants slept there is no "reasonable hypothesis of innocence" to be found in the absurd proposal that either defendant might have gone to bed and soundly slept while the other was reawakened by the child's crying and, without disturbing his or her sleeping spouse, proceeded to shake the baby to death. This compels the conclusion that the incident occurred prior to 2:00 A.M., when both acknowledge they were awake and with the baby.
Moreover, as to the claim that one of the defendants could have gone to bed after putting the child to bed innocently unaware that the baby was in a coma rather than asleep, the medical testimony by Dr. Miller demonstrated that the manner in which the baby's legs were flexed in the carrier indicated that rigor mortis had set in after the baby was placed there. Thus, when the police arrived he must have been in the carrier for hours rather than in the crib, where both defendants claimed he had been put when they went to bed and had been found, dead, in the morning.
Furthermore, a close examination of the record demonstrates that each defendant made certain other statements subsequent to the child's death which established that neither of them, as is now claimed, could have gone to bed oblivious to what had occurred and awakened to find to his or her shocked surprise that the baby was dead. The inescapable conclusion to be drawn from their statements is that they each became aware of the injury to the child at the time it happened, either by having caused it or having seen it occur, and later chose to disguise their culpability by claiming surprise.
Generally, evidence, such as false exculpatory statements, offered to prove consciousness of guilt is of weak probative value since there may be other reasons, such as fear of being wrongly accused, to cause a defendant to attempt to divert suspicion from himself or herself (see, People v Moses, 63 N.Y.2d 299, 309). However, in this case, such evidence was not put forth merely as proof of a guilty conscience. Rather, such evidence constitutes proof that each defendant was aware that the child's death was a result of abuse before he or she could have gained such awareness innocently, i.e., when the autopsy was performed or the charges were brought (see, People v Benzinger, 36 N.Y.2d 29). Since each defendant's false or contradictory statements display an awareness of the culpable nature of the child's death well before such knowledge could have been innocently gained, this proof forecloses the possibility that either one, as claimed, was unaware of the injury at the time it happened.
First, as to Mrs. Wong, who held herself out to be a nurse, the evidence demonstrates that, when she spoke to Mrs. Jiang on the night after the baby died, she stated that there had been nothing wrong with the child the night before and that if she had taken him to the hospital the doctor would have "scold[ed]" her. This statement was completely contradicted by her later statement that she had seen that the baby was having cramps and was shaking involuntarily. Since both of these statements could not be true, this contradiction reveals that Mrs. Wong felt the need to prevaricate, which need could only have arisen from her awareness of how the baby died. Moreover, her transparent attempt to throw the blame elsewhere by indicating that it might have been Mrs. Jiang's consumption of birth control pills or herbal medicines that precipitated these symptoms in the child, and, impliedly, the baby's death, further demonstrates her awareness that either she or her husband had caused the child's death (see, People v Sims, 110 A.D.2d 214, 223-224, lv denied 67 N.Y.2d 657, supra).
Furthermore, even earlier, her very first act of which we are aware on the morning of Kwok-Wei's death was to call the child's father, inform him that the child was dead and ask him to come to the apartment. She certainly would not have told him the child was dead unless she was certain of it, and, since the child was already in rigor mortis, there is no reason to believe that Mrs. Wong, with her nurse's training, would not have been fully aware that he was already dead. And yet, when she spoke to Mr. Jiang the second time, after she had been informed by the police that the child was dead, she stated to him that she did not know if he was dead and that he had been taken to the hospital in an ambulance. Once again, the mere fact of prevarication, in this case concerning her awareness of whether the baby was dead, reveals her knowledge that such awareness might be incriminating.
Although, unlike his wife, Mr. Wong never actually revealed his awareness on that morning that the child was dead, it is hardly reasonable to suppose that she could have been aware the child was dead without his also knowing of it. In light of this, the evidence reveals that he also displayed an eagerness to convey the impression that he did not believe the child was dead but, rather, that he was in need of emergency medical treatment. When he called 911 he reported only that the baby was unconscious and needed an ambulance, and, when the police arrived, his immediate reaction was to tell them that he needed an ambulance, not the police.
Moreover, at the time of his arrest, Mr. Wong unwittingly eliminated any doubt of his own awareness of the way in which the baby had died by his statement to the arresting officer that they would eventually discover that the Wongs' three year old, whom he described as a little "Rambo," was the one who had injured the baby. As with the defendants' other statements, this comment was much more than merely a false exculpatory statement demonstrating consciousness of guilt. Rather, it was compelling circumstantial proof from which the only reasonable hypothesis which could be drawn was that Mr. Wong knew that the child had died of physical trauma, thereby establishing that he had either inflicted the injury or been present when the injury was inflicted.
For all of these reasons we find that the evidence established beyond a reasonable doubt that each of the defendants either caused the injuries or were aware of them at a time when he or she could have come to the child's aid and recklessly failed to do so, thereby causing the child's death.
As to defendants' additional contentions, we reject the argument that the prosecution was improperly allowed to introduce evidence concerning the other children who had been subjected to abuse while in defendants' care. This evidence was not only admissible to counter the defense that the injuries to Kwok-Wei had been accidental (People v Henson, 33 N.Y.2d 63), but to demonstrate the recklessness of the passive defendant in leaving the child at the mercy of one who had previously committed acts of child abuse. Indeed, no impermissible prejudice could have ensued from the introduction of this evidence as to either defendant, since there was no proof as to which of the defendants had committed the prior acts. Thus, any implication that that person had a propensity to commit such a crime could not have contributed to the jury's finding that each of these defendants was guilty.
We find that the court's charge, when taken as a whole, properly explained to the jury the standards by which it was to judge the evidence as to the culpable mental state of each defendant. We also find that the prosecution's case in rebuttal was properly addressed to defendants' attempts to prove affirmative facts through the opinion testimony of its experts. (See, People v Harris, 57 N.Y.2d 335, 344, cert denied 460 U.S. 1047.)
Defendants' remaining contentions are not preserved for our review, and we find that they do not warrant review in the interest of justice.
Accordingly, the judgment of the Supreme Court, New York County (Clifford Scott, J.), rendered August 8, 1990, convicting defendants of manslaughter in the first and second degrees and endangering the welfare of a child, and sentencing them each to respective, concurrent terms of imprisonment of 8 1/3 to 25 years, 5 to 15 years and 1 year, should be modified to vacate the convictions for manslaughter in the first degree, and should be otherwise affirmed.