| People v Valencia |
| 2009 NY Slip Op 00572 [58 AD3d 879] |
| January 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Albeiro Valencia, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Judith R.Sternberg of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Peck, J.),rendered February 23, 2007, convicting him of assault in the first degree, assault in the seconddegree, vehicular assault in the second degree, assault in the third degree, operating a motorvehicle while under the influence of alcohol (two counts), reckless driving, and violations ofVehicle and Traffic Law § 1130 (1), (2) and § 1127 (a), after a nonjury trial, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of assault inthe first degree, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
We agree with the defendant that the evidence at trial, viewed in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), was legally insufficient toestablish that he acted with the culpable mental state of depraved indifference to human life atthe time he collided with the complainants' vehicles and, thus, did not support his conviction ofassault in the first degree (see Penal Law § 120.10 [3]; People v Feingold, 7 NY3d 288[2006]; People v Palmer, 34 AD3d701 [2006]). In this regard, we find unpersuasive the prosecution's contention that the mensrea component of depraved indifference assault may be satisfied by considering the defendant'sstate of mind at a point much earlier in time than the accident, when the defendant allegedlymade a conscious decision to consume an excessive amount of [*2]alcohol with the awareness that he subsequently would beoperating a motor vehicle. Assuming arguendo that the evidence would support such a finding,and that such a state of mind would otherwise satisfy the culpable mental state of depravedindifference to human life, we conclude that the defendant's state of mind at the time heconsumed the alcohol was too temporally remote from his operation of the vehicle to support aconviction for depraved indifference assault in this case. We find unpersuasive our dissentingcolleague's reliance upon dicta to the contrary set forth in the majority opinion in People v Wells (53 AD3d 181[2008]).
Given the limited contentions before us on this appeal, we have no occasion to decide theseparate question of whether voluntary intoxication may negate the mens rea of depravedindifference (cf. People v Coon, 34AD3d 869 [2006]).
The defendant's remaining contentions either are without merit or need not be reached inview of the foregoing. Mastro, J.P., Eng, and Belen, JJ., concur.
Dillon, J., concurs in part and dissents in part, and votes to affirm the judgment appealedfrom, with the following memorandum: I respectfully dissent from the portion of the majority'sdecision which holds that the defendant's intoxication was too temporally remote from hisdriving to permit his conviction of depraved indifference assault under Penal Law §120.10 (3). I urge that the defendant's conviction and sentence be affirmed in all respects.
At a friend's house on Long Island, the defendant voluntarily consumed alcohol in sufficientquantities as to result in a .21% blood alcohol content, while knowing that he was going to drivehimself back to his home in Elmhurst, Queens. Thereafter, the defendant operated his vehiclenorthbound in a southbound lane of the Wantagh State Parkway for approximately 3.9 milestoward oncoming traffic, at a speed of approximately 60 miles per hour. Along the way, hepassed five red-and-white wrong-way signs, seven large overhead exit signs that could not beread because he was approaching them from the opposite direction, and 61 other signs that couldnot be read because they were backwards for the defendant's direction of travel. Near SunriseHighway, the defendant collided head-on into two vehicles, causing the operators of thosevehicles to sustain severe injuries.
After a nonjury trial, the defendant was convicted of, inter alia, assault in the first degreebased on depraved indifference to human life (see Penal Law § 120.10 [3]). Thetrial court noted in its verdict that the defendant's intoxication rendered him "oblivious" to hisdangerous travel upon the highway prior to the accident. However, rather than predicating afinding of a depraved indifference mental state upon the defendant's condition during themoments leading up to the collision, the trial court carefully held that the defendant's depravedindifference mental state was established when he engaged in excessive and continuous drinking,knowing that he would later be driving home on heavily trafficked roads. In other words, the trialcourt temporally split the defendant's mens rea for depraved indifference assault, formed duringhis excessive drinking, from his actus reus, which occurred when he later crashed his automobile[*3]head-on into other motor vehicles, causing injuries.
Penal Law § 120.10 provides that: "[a] person is guilty of assault in the first degreewhen: . . . 3. Under circumstances evincing a depraved indifference to human life,he recklessly engages in conduct which creates a grave risk of death to another person, andthereby causes serious physical injury to another person."
While this Court has held that evidence of intoxication does not negate the element ofrecklessness (see People v Lampon,38 AD3d 682, 682-683 [2007]), depraved indifference is now recognized as a distinctculpable mental state (see People vFeingold, 7 NY3d 288, 296-297 [2006]; People v Hawthorne, 35 AD3d 499, 500 [2006]), consisting of "anutter disregard for the value of human life—a willingness to act not because one intendsharm, but because one simply doesn't care whether grievous harm results or not" (People vFeingold, 7 NY3d at 296 [internal quotation marks omitted]).
The defendant argues on appeal that the evidence of depraved indifference assault waslegally insufficient, on the ground that his intoxication prevented the People from proving themens rea required for the culpable mental state of depraved indifference. The People argue thatthe trial court correctly determined that the defendant's mens rea, i.e., "guilty mind" (seeBlack's Law Dictionary 889 [5th ed 1979]), was established prior to entering his car, when hemade the decision to drink excessively knowing that he would thereafter be driving, withoutregard for the consequences it could have upon other motorists.
While a defendant's mens rea is typically present at the time of the actus reus, the physicalcomponent of the crime (see e.g. Peoplev Rosas, 8 NY3d 493, 499 [2007]), the mens rea and actus reus in depraved indifferencecircumstances need not necessarily be simultaneous (see generally People v Kibbe, 35NY2d 407 [1974]; People v Galle, 77 NY2d 953 [1991] [criminally negligenthomicide]). Therefore, viewing the evidence in the light most favorable to the People, as wemust (see People v Contes, 60 NY2d 620, 621 [1983]), the evidence presented at trial islegally sufficient to sustain the defendant's conviction of assault in the first degree based ondepraved indifference to human life (see Penal Law § 120.10 [3]). The evidencewas sufficient to prove the defendant's culpable mental state at the time of his excessivedrinking. Contrary to the defendant's contention, his voluntary intoxication by alcohol did not,under the peculiar circumstances of this case, negate, as a matter of law, the requisite elements ofdepraved indifference to human life, or prevent the People from proving the elements ofdepraved indifference assault beyond a reasonable doubt (cf. People v Castellano, 41 AD3d 184, 185 [2007]; People v Carter, 40 AD3d 1310,1312 [2007]). The fact that the defendant was found to be "oblivious" in the moments leading upto the accidents underscores the People's argument that the defendant's conduct, at the time of hisdrinking while intending to drive a motor vehicle thereafter, evinces an "utter disregard for thevalue of human life" (People v Feingold, 7 NY3d at 296).
The case of People v Coon (34AD3d 869 [2006]), relied upon by the defendant, is distinguishable. In Coon, thedefendant stabbed his sister after voluntarily using crack cocaine, and the Appellate Division,Third Department, held that the cocaine-intoxication delirium which ensued negated the culpablemental state of depraved indifference murder. There is nothing in Coon to suggest thatwhen the defendant used crack cocaine, he anticipated that he would later be wielding a knife athis sister. Here, however, the defendant knowingly drank excessive quantities of alcohol whileanticipating that he would [*4]later be operating his motorvehicle, thus foreseeably placing other persons at risk while nevertheless disregarding theirsafety. The defendant's conduct here is more akin to circumstances routinely associated with adepraved indifference state of mind such as "shooting into a crowd, placing a time bomb in apublic place, or opening the door of the lions' cage in the zoo" (People v Payne, 3 NY3d 266, 272[2004] [internal quotation marks omitted]). In my view, the question of whether intoxicationnegates a depraved mental state should be a fact-intensive inquiry employed on a case-by-casebasis. Here, the severance of the defendant's mens rea from his subsequent anticipated actus reuspermits a finding of depraved indifference assault, as the defendant was not yet "oblivious" fromintoxication at the time his culpable mental state was formed.
The facts of this case are remarkably similar to those in People v Wells (53 AD3d 181 [2008]), wherein the defendant,inter alia, operated a motor vehicle in a highly-intoxicated state at high speed while ignoringtraffic signals, and was convicted of depraved indifference murder. The Appellate Division, FirstDepartment, unanimously affirmed the defendant's conviction under the former standard ofPeople v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]) thatwas in effect at the time of the crime (see People v Wells, 53 AD3d at 189-192).Significantly, the First Department alternatively noted that even under the more recent depravedindifference standard of People vPayne (3 NY3d 266 [2004]) and People v Feingold (7 NY3d 288 [2006]), which redefined depravedindifference as a separate mental state, the defendant's conduct in Wells of drinking toexcess, followed by driving a motor vehicle, demonstrated an utter disregard for the value ofhuman life as to satisfy depraved indifference culpability (see People v Wells, 53 AD3dat 192-193) . In effect, the First Department recognized that although there was a temporal splitbetween the defendant's mens rea while drinking and his actus reus while later driving, thedefendant's mental state was still one of depraved indifference. I share that reasoning as it issound, commensurate with the current definition of depraved indifference, and proportional tothe plague of drunk driving upon our state's highways.
The defendant in Wells sought leave to appeal, which was denied by the Court ofAppeals (see People v Wells, 10 NY3d 965 [2008]). While the Court of Appeals rarelyprovides a reason for denying leave to appeal, it could have granted leave to appeal inWells if it perceived problems with the First Department's reasoning regarding, inter alia,temporally splitting, in drunk driving cases, the depraved indifference mens rea from the laterrelated actus reus.
My colleagues in the majority sidestep the primary issue of this appeal, which is whetherintoxication qualifies as a legal defense to a depraved indifference state of mind. Instead, mycolleagues are troubled by what they perceive as the temporal remoteness between thedefendant's drinking and his driving, notwithstanding that they both occurred in a single eveningand constitute a single chain of events. I differ with my colleagues since the issue of whether thetime between the defendant's drinking and driving was too lengthy to sustain a conviction neverwas raised during the trial and is, therefore, unpreserved for appellate review (see CPL470.05 [2]). Moreover, the issue of temporal remoteness is not even specifically raised by thedefendant in his appellate brief. In essence, the majority is creating "new law," with which Idisagree, that a conviction for a single-evening event should be reversed on the basis of atemporal remoteness standard that is arbitrarily applied and undefined, that conflicts withexisting authority from the Court of Appeals (see e.g. People v Kibbe, 35 NY2d 407[1974]), and that is contrary to the applicable reasoning of People v Wells (53 AD3d 181 [2008]).[*5]
Therefore, I would affirm the judgment of conviction.