| People v Bianco |
| 2009 NY Slip Op 08371 [67 AD3d 1417] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Dylan M.Bianco, Respondent. |
—[*1] John C. Putney, Mount Morris, for defendant-respondent.
Appeal from an order of the Livingston County Court (Robert B. Wiggins, J.), enteredJanuary 6, 2009. The order dismissed the indictment.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: On appeal from an order dismissing the indictment charging defendant withcriminally negligent homicide (Penal Law § 125.10), the People contend that the evidencepresented to the grand jury was legally sufficient to support that charge. We reject thatcontention.
In his statement to the police that was presented to the grand jury, defendant admitted that heand decedent had used heroin together the weekend before decedent's death. Defendant furtherstated that, the day before decedent's death, defendant observed that decedent was "wasted," andthey went to defendant's house, where decedent "passed out." The following day, defendantdrove decedent to defendant's place of employment and left him in the vehicle while defendantwent to work. Upon thereafter checking on decedent during the course of the work day,defendant found that he was sleeping in the vehicle. Later that afternoon, defendant and decedentdrove to a supermarket, and decedent waited in the vehicle while defendant went into the store.When defendant returned from the store, he observed that decedent looked "like he was gettingsick." Defendant then drove decedent to decedent's own vehicle, where he helped decedent to sitin the passenger seat, and defendant drove decedent's vehicle to the parking lot of a fast foodrestaurant and left decedent there. Before leaving the parking lot, defendant threw into adumpster a medicine bottle with methadone and used needles that he had obtained fromdecedent. Defendant further stated that, on his way to work the following morning, defendantobserved decedent's vehicle parked where he had left it but that he did not stop because he didnot see anyone and he believed that decedent "would have gone with the police by [that time]."According to other evidence presented to the grand jury, however, decedent had died while inthe vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication."
The standard for reviewing the legal sufficiency of the evidence before the grand jury is "'whether the evidence, viewed in the light most favorable to the People, if unexplained and [*2]uncontradicted, would be sufficient to warrant conviction by a trialjury' " (People v Scerbo, 59 AD3d1066, 1067 [2009], lv denied 12 NY3d 821 [2009], quoting People vManini, 79 NY2d 561, 568-569 [1992]). Here, we conclude that defendant's actions were nota "sufficiently direct cause" of decedent's death to warrant the imposition of criminalliability (People v Kibbe, 35 NY2d 407, 413 [1974], rearg denied 37 NY2d 741[1975]). Decedent's death was attributed solely to a drug overdose, and the evidence presented tothe grand jury established that decedent himself obtained the drugs, outside the presence ofdefendant, and that decedent did not use drugs in defendant's presence on the day in question(cf. People v Galle, 77 NY2d 953, 955-956 [1991]). Present—Scudder, P.J.,Hurlbutt, Martoche, Centra and Peradotto, JJ.