| People v Raymond |
| 2008 NY Slip Op 09244 [56 AD3d 1306] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Appellant, v Nicholas Raymond, Respondent. |
—[*1] Salvatore J. Piemonte, Camillus and Scheuermann & Scheuermann, Delmar, fordefendant-respondent.
Appeal from an order of the Supreme Court, Cayuga County (Thomas M. VanStrydonck, J.),entered December 17, 2007. The order, insofar as appealed from, granted that part of defendant'smotion seeking dismissal of the second count of the indictment and dismissed that count of theindictment.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: The People appeal from an order that, inter alia, granted that part ofdefendant's motion seeking dismissal of the second count of the indictment, charging defendantwith manslaughter in the second degree (Penal Law § 125.15 [1]), on the ground that itwas not supported by legally sufficient evidence (see CPL 210.20 [1] [b]). The six-countindictment also charged defendant with, among other crimes, criminally negligent homicide(Penal Law § 125.10), based on allegations that he operated a motor vehicle at anexcessive rate of speed after having consumed alcohol and crashed into a tree, "thereby causingthe death of [decedent], a backseat passenger in said vehicle." The count charging defendant withmanslaughter in the second degree alleges that defendant recklessly caused the death of decedentby leaving him in the vehicle without seeking medical or emergency assistance before he wasfound dead approximately four hours later. We affirm, although our reasoning differs from thatof Supreme Court.
On a motion to dismiss an indictment or one or more counts therein based on the allegedlegal insufficiency of the evidence before the grand jury, the court must determine whether thereis "competent evidence which, if accepted as true, would establish every element of an offensecharged and the defendant's commission thereof" (CPL 70.10 [1]; see People v Jensen,86 NY2d 248, 251-252 [1995]; People v Watson, 32 AD3d 1199 [2006], lv denied7 NY3d 929 [2006]; CPL 190.65). It is irrelevant whether "other, innocent inferences couldpossibly be drawn from the facts . . . , as long as the Grand Jury could rationallyhave drawn the guilty inference" (People v Deegan, 69 NY2d 976, 979 [1987]; seePeople v Bello, 92 NY2d 523, 525-526 [1998]), and "the court is not to weigh the proof orexamine its adequacy" (People v Galatro, 84 NY2d 160, 164 [1994]). The elements ofmanslaughter in the second degree under Penal Law § 125.15 (1) are "the creation of asubstantial and [*2]unjustifiable risk; an awareness of anddisregard of the risk on the part of defendant; and a resulting death" (People v Licitra, 47NY2d 554, 558 [1979], rearg denied 53 NY2d 938 [1981]). Thus, causation is " 'anessential element which the People must prove beyond a reasonable doubt' " (People vPhippen, 232 AD2d 790, 791 [1996], quoting People v Stewart, 40 NY2d 692, 697[1976]).
Here, the evidence before the grand jury on causation was legally insufficient. That evidenceconsisted of the testimony of the Deputy Medical Examiner, who opined that the cause ofdecedent's death was swelling of the brain resulting from head injuries caused by the motorvehicle accident. The Deputy Medical Examiner further testified that the brain swelling andresulting death occurred "over time," that decedent survived the accident for "a period ofminutes," and that "it took certainly longer than two to three minutes and most likely less than anhour" for death to occur. According to the opinion of the Deputy Medical Examiner, decedentmight have survived had he received "appropriate surgical or medical intervention" within thattime frame. There is no doubt that, if decedent's death occurred near the beginning of theestablished time frame, timely surgical or medical intervention could not have been renderedeven if defendant had immediately reported the accident, and thus there would be no basis for afinding of causation. Moreover, there is no basis in the evidence from which a jury could inferbased on the testimony of the Deputy Medical Examiner that death occurred either near thebeginning or near the end of that time frame. Thus, the determination that defendant's failure tosecure medical or emergency assistance caused the death of decedent would necessarily be basedon "impermissible speculation" and could not rationally be inferred by the grand jury based onthe evidence before it (People v Jackson, 65 NY2d 265, 272 [1985]; see generallyPeople v Calabria, 3 NY3d 80, 82 [2004]; Matter of Anthony M., 63 NY2d 270,280-281 [1984]).
We further conclude that, in any event, the People failed to establish that decedent couldhave received medical or surgical intervention by the end of the Deputy Medical Examiner's timeframe. The grand jury testimony establishes that the emergency personnel responding to theaccident scene could not have administered the appropriate medical intervention. In addition, thePeople failed to offer any evidence concerning the amount of time required to enable emergencypersonnel to extricate decedent from the motor vehicle upon their arrival 20 to 30 minutes afterthe 911 call, nor did they offer any evidence concerning the location of the nearest hospital orwhether the drug used to reduce brain swelling was available at that hospital.Present—Hurlbutt, J.P., Smith, Green, Pine and Gorski, JJ.