| People v Lentini |
| 2018 NY Slip Op 04983 [163 AD3d 1052] |
| July 5, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Maria Lentini, Appellant. |
E. Stewart Jones Hacker Murphy, LLP, Troy (James C. Knox of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered June 1, 2017, upon a verdict convicting defendant of the crime of leaving the scene ofan incident without reporting a personal injury.
In the early morning hours of December 6, 2015, defendant was driving on a dark road in theTown of Halfmoon, Saratoga County when she struck and killed a pedestrian in her lane oftraffic. The ensuing investigation revealed that the accident went unreported for more than anhour and that defendant might have left the area for part of that period. An indictment wasaccordingly handed up that charged defendant with, as is relevant here, a felony count of leavingthe scene of an incident without reporting a personal injury (see Vehicle and Traffic Law§ 600 [2] [a], [c]). She was convicted of that count by a jury. County Courtsentenced defendant to 1
Defendant first argues that the verdict was not supported by legally sufficient evidence [*2]and was against the weight of the evidence. Surveillance video froma nearby convenience store shows defendant's vehicle striking the victim at 2:29 a.m., whichother evidence revealed caused the victim to be propelled through the windshield and sustainsevere, obviously fatal injuries. The accident was not reported until 3:44 a.m., when a womanwho identified herself as defendant's sister called 911. The key dispute is whether defendant leftthe area for a portion of that hour-plus delay and, in so doing, failed to "report said incident assoon as physically able to the nearest police station or judicial officer" before leaving the scene(Vehicle and Traffic Law § 600 [2] [a]).
The trial evidence reflected that defendant telephoned four individuals—her sister,then-boyfriend Robert Walton, Mark Howley and Brittany McNeice—in the periodbetween the accident and the 911 call. Howley testified that he raised the issue of calling thepolice when a "hysterical" defendant called him soon after the accident to say that she had hit andkilled someone with her car. McNeice, who was out with Walton, testified that defendant calledher a little after 3:00 a.m. looking for Walton. Thereafter, at 3:27 a.m., the store surveillancevideo shows a black Cadillac of the type driven by defendant's sister pull into the store's parkinglot. The video shows someone enter the Cadillac from the direction of the accident scene, afterwhich the vehicle drives onto the road and toward it. McNeice drove by the accident scene withWalton around 3:39 a.m. and testified that, while stopping near the scene to let him out and in theparking lot to retrieve him, she only saw defendant's vehicle at the scene and did not spotdefendant or anyone else in the area. The 911 call was made at 3:44 a.m. and, at 3:45 a.m., thesurveillance video shows the Cadillac turning into the parking lot from what appears to be thedirection opposite the accident scene. The vehicle stops for several seconds, then turns around,stops for a moment at the lot's exit and turns onto the road toward the accident scene. When firstresponders arrived at the accident scene a few minutes later, they found defendant, her sister, hersister's Cadillac and Walton.
Viewing this evidence in the light most favorable to the People (see People v Reed, 22 NY3d 530,534 [2014]; People v Danielson, 9NY3d 342, 349 [2007]), a valid line of reasoning existed from which the jury could findbeyond a reasonable doubt that defendant was capable of reporting the accident to the police andleft the scene with her sister without doing so (see People v Field, 175 AD2d 291,291-292 [1991]; People v Petterson, 103 AD2d 811, 811 [1984]). The verdict is, as aresult, founded upon legally sufficient evidence. An acquittal would not have been unreasonablegiven the proof that defendant was extremely upset in the aftermath of the accident, McNeice'sacknowledgment that she was distracted during her time near the accident scene and refused tolook toward defendant's vehicle, and the lack of evidence showing where, if anywhere, defendantand her sister went in the minutes before the 911 call. The jury could nevertheless creditMcNeice's testimony that defendant was not at the scene or in the parking lot in the minutesbefore 911 was called, especially in conjunction with the surveillance video showing the comingsand goings of the Cadillac. We accord deference to the credibility determination of the jury and,after "review[ing] any rational inferences that may be drawn from the evidence and evaluat[ing]the strength of such conclusions," cannot say that the verdict was against the weight of theevidence (People v Danielson, 9 NY3d at 348; see People v Field, 175 AD2d at292).
Defendant next contends that County Court abused its discretion in declining to declare amistrial after repeated references to her desire to speak to an attorney on the night of the accident.To that end, proof of a defendant's invocation of his or her right to counsel may "create[ ] aprejudicial inference of consciousness of guilt" and has no place in the People's [*3]case-in-chief (People v Hunt, 18 AD3d 891, 892 [2005]; see People v VonWerne, 41 NY2d 584, 588 [1977]; People v Wright, 126 AD3d 1036, 1038 [2015], lv denied26 NY3d 1094 [2015]). Defendant's strategy at trial relied in large part upon the fact that she wasnot at fault in the accident but did witness the victim's body being propelled through herwindshield and coming to rest inches away from her. She relied upon this state of affairs tocontend that her failure to contact authorities was not because she was "coldly calculating," butbecause she was in shock and incapable of doing so. Defendant further questioned the proofsupporting the People's hypothesis that she left the scene with her sister before the 911 call.
Any indication that defendant sought to consult with counsel would undermine thefoundation of this defense by prejudicially suggesting that she was conscious of guilt, rationalenough to consider the question of counsel and, perhaps, capable of reporting the accident ortaking steps to avoid doing so (see e.g. People v Al-Kanani, 26 NY2d 473, 478 [1970]).Defendant therefore moved in the midst of jury selection to "preclude any testimony regarding[defendant's] determination or consideration to consult with counsel" on the night of the accident.The People gave assurances that they did not intend to elicit that testimony and County Courtdirected them not to do so. This ruling was quickly violated by the People's second witness, adeputy sheriff who responded to the 911 call and testified that defendant chose not to beinterviewed about the accident because "she did not feel comfortable answering questions. . . without her lawyer present." Defendant objected and moved for a mistrial.County Court declined to grant a mistrial, but was troubled by the violation of its pretrial rulingand elected to strike the entirety of the officer's testimony, bar any further testimony from himand give a curative instruction to the jury.
County Court determined that the improper testimony was not deliberately elicited and,insofar as the officer's testimony was stricken and "an immediate and appropriate curativeinstruction [given] to alleviate any prejudice," the error might not have been "so egregious as todeny defendant a fair trial" by itself (People v Miller, 239 AD2d 787, 787-788 [1997],affd 91 NY2d 372 [1998]; seePeople v Dorsey, 3 AD3d 590, 592 [2004]; cf. People v Russell, 199 AD2d 345,346 [1993]). This calculus changed when the pretrial ruling was violated again by Walton, whotestified that defendant wanted his "attorney's number" when they spoke by telephone after theaccident. Defendant immediately objected and renewed the application for a mistrial and, in thecolloquy that ensued, the People expressed their surprise at the testimony, but acknowledged thatthey had not instructed Walton to avoid the topic. County Court found the People's conduct"extremely disturbing" and addressed it by striking Walton's testimony in its entirety, precludingany further testimony from him and giving a curative instruction to the jury. Nevertheless, "[a]court's instructions to a jury to disregard matters improperly brought to their attention cannot'always assure elimination of the harm already occasioned' " (People v Calabria,94 NY2d 519, 523 [2000], quoting People v Carborano, 301 NY 39, 42-43 [1950]). Inour view, these repeated violations of the pretrial ruling, in a case where defendant's capacity toact and her actions after the accident were in serious dispute, caused harm that could not bereliably dissipated. County Court therefore abused its discretion in declining to declare a mistrial(see People v Shaulov, 25 NY3d30, 35 [2015]; People vRandolph, 18 AD3d 1013, 1016 [2005]; People v Vasquez, 120 AD2d 757,757-758 [1986]; People v Cobb, 104 AD2d 656, 659 [1984]) and, inasmuch as we do notagree with defendant that the People deliberately acted to provoke a mistrial (see People vRussell, 199 AD2d at 346; cf.Matter of Gorghan v DeAngelis, 7 NY3d 470, 473 [2006]), we remit for a new trial.
Defendant's remaining arguments are academic.
[*4] McCarthy, J.P., Lynch, Clark and Rumsey, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Saratoga County for a newtrial.
Footnote *:Defendant has remained free onbail pending appeal pursuant to orders of this Court (2017 NY Slip Op 87414[U] [2017]; 2017NY Slip Op 95670[U] [2017]).