| People v McGrantham |
| 2008 NY Slip Op 09099 [56 AD3d 685] |
| November 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v JamesMcGrantham, Respondent. |
—[*1] Frankie & Gentile, P.C., Mineola, N.Y. (Joseph A. Gentile of counsel), forrespondent.
Appeal by the People from so much of an order of the Supreme Court, Kings County(Murphy, J.), dated April 2, 2007, as granted those branches of the defendant's motion whichwere to dismiss counts one and two of Kings County indictment No. 6461/06, charging him withcriminally negligent homicide and reckless driving.
Ordered that the order is reversed insofar as appealed from, on the law, those branches of thedefendant's motion which were to dismiss counts one and two of Kings County indictment No.6461/06 are denied, and those counts of the indictment are reinstated.
The evidence before the grand jury, if accepted as true, established that in the early morninghours of March 29, 2006 the defendant drove his vehicle in the wrong direction onto an exit rampleading from the westbound Belt Parkway (hereinafter the Parkway) in Brooklyn despite signswarning "Do Not Enter" and "One Way." Upon reaching the Parkway, the defendant had accessto substantial paved and grassy shoulder areas. However, instead of utilizing these shoulders tocorrect his direction, the defendant, upon realizing that he had driven onto the exit ramp insteadof the intended entrance ramp, made a slow right turn across the Parkway in order to "looparound" and face the correct direction of traffic.
Two eyewitnesses approaching the defendant's vehicle while traveling westbound on theParkway testified that when they initially saw the defendant's vehicle, it was in the right lane ofthe Parkway and facing perpendicularly to the direction of traffic. The defendant's vehicle thenmoved slowly and in a [*2]southwesterly direction across thethree lanes of the Parkway, colliding with a motorcyclist who had begun to steer to his left in anattempt to avoid the vehicle. The collision, which caused the motorcyclist's death, took place inthe far left lane, next to the median divider. The Supreme Court determined, inter alia, that thedefendant, who had not been drinking or speeding, had accidentally driven onto the exit rampand did not possess the requisite mental states to establish the charges of criminally negligenthomicide and reckless driving. We reverse.
Under Penal Law § 15.05 (4), "[a] person acts with criminal negligence with respect toa result . . . when he fails to perceive a substantial and unjustifiable risk that suchresult will occur or that such circumstance exists. The risk must be of such nature and degree thatthe failure to perceive it constitutes a gross deviation from the standard of care that a reasonableperson would observe in the situation." While a traffic violation does not, in and of itself,constitute an act of criminal negligence (see People v Senisi, 196 AD2d 376, 379[1994]), such a violation may nevertheless provide a basis from which it can be concluded, inlight of additional relevant factors, that the culpable mental state existed (see People vLaFantana, 277 AD2d 395 [2000]; People v Mitchell, 213 AD2d 562, 562-563[1995]). Here, if accepted as true, the evidence before the grand jury of the defendant's conduct inturning his vehicle perpendicularly and across three lanes of traffic on a busy highway at a veryslow speed, instead of righting the direction of his vehicle by using the available paved or grassyshoulder areas, clearly constituted "a gross deviation from the standard of care that a reasonableperson would observe in the situation" (Penal Law § 15.05 [4]; see People vFuentes, 27 AD3d 481 [2006]; People v McDermott, 15 AD3d 595, 596 [2005];People v Mitchell, 213 AD2d 562 [1995]), and demonstrated an insensitivity " 'to theinterest and claims of other persons in society' " (People v Haney, 30 NY2d 328, 334[1972], quoting Model Penal Code, Tent Draft No. 9, at 53).
Our dissenting colleague is of the opinion that the evidence does not "establish that thedefendant consciously engaged in conduct which resulted in the creation of an unjustifiable riskof death." However, the defendant's conduct herein cannot be characterized merely as a badchoice or simply misguided. While the defendant may have been confused and/or frightenedwhen he realized he entered the highway via an exit ramp and was facing the wrong way, thiscannot excuse his conscious decision to execute a U-turn on a high-speed roadway, a maneuverwhich by its very nature was fraught with dire consequences, instead of exercising the availableand far less dangerous option. In fact, when asked for the cause of the accident on a writtenstatement taken by an investigating police officer on the day of the accident, the defendantresponded, "my own stupidity."
We also disagree with the dissent's conclusion that a videotape of the area in question showsthat "there would have been no way for the defendant to reach the 'arguably' paved and grassyarea without backing up back into the exit ramp," and that such a "strategy" may not have beenreasonable. Instead, our review of the videotape reveals that the "grassy paved" area could havebeen accessed without much difficulty by driving over what appears to be a relatively low curbarea, and that there was ample room, away from the forested area, for the defendant to haveturned his car around and driven off the exit ramp in the proper direction. Indeed, it appears thatonce the defendant reached the top of the exit ramp, he could have driven into the grassy area,executed a three point turn, and driven off the exit ramp with relative ease, or he could havesimply backed the car down the exit ramp to the street level. Certainly, either maneuver couldhave been accomplished with a much greater degree of safety than attempting a U-turn [*3]on the highway itself.
Moreover, the case at bar is unlike the situation in the case of People v Cabrera (10NY3d 370, 378 [2008]), which is relied upon by the dissent, wherein a young inexperienceddriver entered "a tricky downhill curve . . . at a rate of speed well in excess of aposted warning sign." The defendant herein was neither a young nor an inexperienced driver, andhe did not simply "misgauge his ability to handle road conditions" (id.). Instead, thedefendant made a decision to extricate himself from his "wrong way" situation without regard tothe substantial and unjustifiable risk created by such decision. Indeed, given that his sight linewas "limited" upon entering the exit ramp, and it was dark outside, the defendant should havebeen that much more careful in maneuvering his vehicle after realizing his mistake. Thus, incontrast to the situation presented in People v Cabrera (id.), the accident hereinresulted not from a mere "failure to perceive a risk," but rather from "criminal risk creation."
Accordingly, under all of the circumstances, we find that the defendant's conduct did rise tothe level of "morally blameworthiness" so as to justify a charge of criminally negligent homicide(see Penal Law § 15.05 [4]; People v Cabrera, 10 NY3d 370 [2008];People v Boutin, 75 NY2d 692 [1990]). Therefore, viewing the evidence in the light mostfavorable to the prosecution, the evidence was legally sufficient to support the defendant'sindictment for the crime of criminally negligent homicide (see People v Fuentes, 27AD3d 481 [2006]; People v McDermott, 15 AD3d at 596; People v Basak, 275AD2d 419 [2000]; People v Linares, 215 AD2d 201 [1995]).
Similarly, the evidence before the grand jury was legally sufficient to support the defendant'sindictment for reckless driving. Reckless driving is defined as "driving or using any motorvehicle . . . in a manner which unreasonably interferes with the free and proper useof the public highway, or unreasonably endangers users of the public highway" (Vehicle andTraffic Law § 1212). The evidence presented by the People, that the defendant turned hisvehicle perpendicularly and across three lanes of traffic on a busy parkway, was sufficient todemonstrate that he "unreasonably endanger[ed] users of the public highway." Consequently, theevidence was also legally sufficient to support the defendant's indictment for reckless driving(see People v Fuentes, 27 AD3d 481 [2006]).
Thus, we reinstate the counts of the indictment charging the defendant with criminallynegligent homicide and reckless driving. Santucci, J.P., Covello and Chambers, JJ., concur.
Belen, J. (dissenting and voting to affirm the order insofar as appealed from, with thefollowing memorandum): I respectfully dissent. The evidence before the grand jury, if acceptedas true, established that in the early morning hours of March 29, 2006 the defendant accidentallydrove in the wrong direction, entering onto an exit ramp for traffic exiting the westbound BeltParkway (hereinafter the Parkway) in Brooklyn. A detective from the Highway Patrol Section ofthe New York City Police Department who investigated the scene testified before the grand jurythat the signage could potentially be misunderstood. The detective testified that, upon reachingthe Parkway, the defendant had access to a substantial paved and grassy shoulder area. However,instead of utilizing the shoulder, the defendant, upon realizing that he had driven [*4]onto the exit ramp instead of the intended entrance ramp, made aright turn across the Parkway in order to face the correct direction of traffic.
A videotape prepared by mounting a camera to a police vehicle was shown to the grand jury,allegedly demonstrating the route taken by the defendant on that fateful night. The videotape,however, was taken in broad daylight, under sunny conditions at a time when there wasconsiderable traffic in all directions on the Parkway, including cars coming off the exit rampwhile the police vehicle attempted to enter the wrong way. The police vehicle in the videotapedid not continue onto the Parkway, but stopped at the mouth of the ramp. Unlike the oraltestimony presented to the grand jury, the videotape shows that, having reached the beginning ofthe exit, there would have been no way for the defendant to reach the arguably "substantial"paved and grassy area without backing up back onto the exit ramp, a strategy that may not haveappeared to have been preferable or even reasonable at the time. The area in question would havebeen behind the driver exiting the ramp, and there were trees and a high curb that would have tobe negotiated to back up in that space. Thus, the detective's characterization of the defendant'soptions was not supported by the evidence before the grand jury.
There is no evidence that the defendant had sufficient unobstructed space in which he couldhave turned around without utilizing the Parkway itself, even if the evidence is viewed in thelight most favorable to the People. If the defendant had chosen to back up or otherwise attempt toaccess this shoulder, there is no telling whether the same or a similar accident may haveoccurred. Finally, the videotape evidence before the grand jury did not itself accurately reflect theconditions that the defendant faced at 2:30 a.m., in the dark, with the shoulder behind him.
Two eyewitnesses, the driver and a front seat passenger, in a car approaching the defendant'svehicle while traveling westbound on the Parkway, testified that the decedent, riding amotorcycle, came quickly from behind them in the center lane. The decedent "zoomed by" themand passed them on the right, "going very fast," traveling at a speed at least 10 to 15 miles perhour faster than their speed of approximately 50 to 55 miles per hour. The decedent motorcyclistthen moved in front of them in the center lane. The eyewitnesses next saw the defendant's vehiclein the right lane of the Parkway facing perpendicularly to the direction of traffic. The defendant'svehicle was moving "very slowly" at a "slow, slow speed" and in a southwesterly direction acrossthe three lanes of the Parkway before the collision with the decedent.
In an attempt to avoid the defendant's vehicle, the decedent steered his motorcycle to the left,and struck the defendant's vehicle on the driver's side. The collision, which caused the decedent'sdeath, took place in the far left lane, next to the median divider.
The Supreme Court determined, inter alia, that the defendant, who had not been drinking orspeeding, had accidentally driven onto the exit ramp due to the poor signage in the area and didnot possess the requisite mens rea to establish the charges of criminally negligent homicide andreckless driving.
A traffic violation does not, in and of itself, constitute an act of criminal negligence.However, such a violation may nevertheless provide a basis from which it can be concluded, inlight of additional relevant factors, that the culpable mental state existed (see People vSenisi, 196 AD2d 376, 379 [1994]).
A divided Court of Appeals in People v Cabrera (10 NY3d 370 [2008]) recently heldthat a teenaged [*5]driver did not commit criminally negligenthomicide although his speeding led to the death of three passengers in his car. In Cabrera,the defendant was driving three teenage friends, none of whom, other than Cabrera, were wearingseatbelts. The majority stated: "There was testimony and forensic evidence that Cabrera, a youngand inexperienced but sober driver, entered a tricky downhill curve, the site of other accidents, ata rate of speed well in excess of the posted warning sign. This behavior is certainly negligent andunquestionably 'blameworthy.' But our decisions have uniformly looked for some kind of morallyblameworthy component to excessive speed in determining criminal negligence; for example,consciously accelerating in the presence of an obvious risk (see [People v] Paul V.S., 75NY2d 944 [1990]). No such morally blameworthy behavior could be inferred from the testimonyin this case. For a 17 year old to badly misgauge his ability to handle road conditions is not thekind of seriously condemnatory behavior that the Legislature envisioned when it defined'criminal negligence,' even though the consequences here were fatal. This crash resulted from anoncriminal failure to perceive risk; it was not the result of criminal risk creation."
Even upon viewing the evidence in the light most favorable to the People, the fact that thedefendant here was traveling on the wrong side of the road does not alone establish that heconsciously engaged in conduct which resulted in the creation of an unjustifiable risk of death(see People v Lasch, 152 AD2d 983 [1989]), particularly in light of the undisputed factthat the signs leading to the Parkway's entrance ramp were confusing and difficult to see.
The requisite mental state for criminal negligence is as follows: "A person acts with criminalnegligence with respect to a result or to a circumstance described by statute defining an offensewhen he fails to perceive a substantial and unjustifiable risk that such result will occur or thatsuch circumstance exists. The risk must be of such nature and degree that the failure to perceiveit constitutes a gross deviation from the standard of care that a reasonable person would observein the situation" (Penal Law § 15.05 [4]).
It is clear that criminal negligence requires more than merely making a bad choice, as statedin People v Boutin (75 NY2d 692, 695-696 [1990]): "[C]riminal liability cannot bepredicated on every act of carelessness resulting in death, that the carelessness required forcriminal negligence is appreciably more serious than that for civil negligence, and that thecarelessness must be such that its seriousness would be apparent to anyone who shares thecommunity's general sense of right and wrong . . . criminally negligent homiciderequires not only a failure to perceive a risk of death, but also some serious blameworthiness inthe conduct that caused it. The risk involved must have been substantial and unjustifiable, andthe failure to perceive that risk must have been a gross deviation from reasonable care" (citationsand internal quotation marks omitted).
The U-turn made by the defendant was undoubtably wrong; however, the defendant's failureto perceive the risk cannot be viewed as morally blameworthy under the circumstances herepresented (see People v Cabrera, 10 NY3d 370 [2008]).[*6]
In People v Paris (138 AD2d 534 [1988]), adivided Appellate Division, Second Department, held that the defendant driver, who suddenlyaccelerated and veered to the left, crossing a double yellow line, going on to the sidewalk, andcrashing into the phone booth, was not guilty of criminally negligent homicide of the passengerwho died as a result of injuries sustained in the collision. A witness to the event testified that thedriver was not sitting upright at the wheel but was slumped to one side. The court stated that ifthere had been evidence that the defendant was driving from a recumbent position intentionallyin order to avoid detection, his actions would surely have constituted criminally negligenthomicide. "However, the far more reasonable inference to be drawn from the evidence is that thedefendant was not consciously attempting to drive from such a position, but rather that he eithersank to that position after having fallen asleep or unconscious, or that he assumed that position asthe result of some perceived emergency" (id. at 537).
Here, it can reasonably be inferred that the defendant's misguided U-turn was a response tothe emergency situation in which he found himself when he entered on the wrong side of a majorroadway. Even if the defendant, when faced with this emergency situation, possibly did not makean intelligent or prudent choice in his attempt to remedy the situation, this error does not rise tothe level of "morally blameworthy" conduct required to establish that the defendant committedthe crime of criminally negligent homicide, despite the tragic consequences of his actions.Moreover, it is not at all clear that, having mistakenly entered the Parkway via the exit ramp dueto the concededly confusing signage, that there was another intelligent or prudent choice to bemade.
Similarly, the misdemeanor count of Vehicle and Traffic Law § 1212, alleging recklessdriving, cannot be substantiated under the facts here. "Reckless driving" means the running oroperation of an automobile under such circumstances as to show a reckless disregard of theconsequences and calls for evidence showing something more than mere negligence (seePeople v Grogan, 260 NY 138, 143-144 [1932]).
Even if there were a preferable alternative to the defendant's attempt to correct his mistake ofentering the Parkway by means of an exit ramp other than by then making a wide, slow U-turn onthe highway, it cannot be said that the defendant was criminally negligent or reckless becauseanother alternative did not occur to him when he was confronted with the frightening reality ofhis precarious position. His conduct did not clearly constitute "a gross deviation from thestandard of care that a reasonable person would observe in the situation" (Penal Law §15.05 [3]), and did not demonstrate " 'conduct which is inadvertent as to risk only because theactor is insensitive to the interest and claims of other persons in society' " (People vHaney, 30 NY2d 328, 334 [1972], quoting Model Penal Code, Tent Draft No. 9, at 53[pedestrian, crossing a city street at the crosswalk with green light in her favor, struck and killedby speeding motorist going at least 52 miles per hour through the red light]).
The defendant did not engage in criminal risk creation, but rather, simply tried to avoid anaccident (see People v Cabrera, 10 NY3d 370 [2008]). Accordingly, the evidence, viewedin the light most favorable to the People, if unexplained or uncontradicted, would not warrant thedefendant's conviction by a petit jury (see People v Galatro, 84 NY2d 160, 163 [1994]).Therefore, the Supreme Court properly granted that branch of the defendant's motion which wasto dismiss counts one and two of the subject indictment charging him with criminally negligenthomicide and reckless driving.