| People v Keller |
| 2010 NY Slip Op 07565 [77 AD3d 852] |
| October 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v DuranKeller, Respondent. |
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Appeal by the People, as limited by their brief, from so much of an order of the CountyCourt, Nassau County (Berkowitz, J.), dated November 18, 2009, as granted that branch of thedefendant's omnibus motion which was to dismiss count one of the indictment, chargingcriminally negligent homicide, on the ground that the evidence presented to the grand jury waslegally insufficient.
Ordered that the order is reversed insofar as appealed from, on the law, that branch of thedefendant's omnibus motion which was to dismiss count one of the indictment, chargingcriminally negligent homicide, on the ground that the evidence presented to the grand jury waslegally insufficient is denied, count one of the indictment is reinstated, and the matter is remittedto the County Court, Nassau County, for further proceedings on the indictment.
In considering the legal sufficiency of an indictment, the reviewing court must view theevidence in the light most favorable to the People and determine whether that evidence, ifunexplained and uncontradicted, would be sufficient to support a guilty verdict after a trial(see People v Jensen, 86 NY2d 248, 251 [1995]; People v Jennings, 69 NY2d103, 114 [1986]). "The reviewing court's inquiry is limited to whether the facts, if proven, andthe inferences that logically flow from those facts supply proof of each element of the chargedcrimes and whether the grand jury could rationally have drawn the inference of guilt" (People v Boampong, 57 AD3d794, 795 [2008]; see People v Bello, 92 NY2d 523, 526 [1998]). Moreover, in thecontext of grand jury procedure, " 'legally sufficient evidence means proof of a prima facie case,not proof beyond a reasonable doubt' " (People v Campbell, 69 AD3d 645, 645 [2010], quoting Peoplev Gordon, 88 NY2d 92, 95-96 [1996]).
Here, the evidence presented to the grand jury, viewed in the light most favorable to thePeople, was legally sufficient to support count one of the indictment, charging the defendant withcriminally negligent homicide (see Penal Law §§ 125.10, 15.05 [4]). Theevidence before the grand jury, if accepted as true, established that at approximately 11:30 p.m.on June 9, 2007, the then 17-year-old defendant was driving approximately 40 miles per hourabove the posted speed limit which was 40 miles per hour, on the northbound portion of LongBeach Road when he lost control. His vehicle skidded across the median, flipped over, slidacross the southbound traffic lanes, and hit the guardrail. As a result of the crash, one of [*2]the passengers in his vehicle was killed. Contrary to the CountyCourt's determination, the People also presented evidence to the grand jury that the defendantengaged in "risk-creating" behavior in addition to driving faster than the posted speed limit whichcreated or contributed to a substantial and unjustifiable risk of death (People v Paul V.S.,75 NY2d 944, 945 [1990] [internal quotation marks omitted]; see People v Ricardo B.,73 NY2d 228 [1989]; People v Soto, 44 NY2d 683 [1978]). In this regard, thedefendant's written statement and the testimony presented to the grand jury, if accepted as true,demonstrated that the defendant was speeding while playing a game with his friend, who wasdriving another vehicle, in which he repeatedly attempted to pass his friend by changing lanesand his friend also repeatedly changed lanes to stay in front of the defendant. By playing thisgame with his friend, in addition to speeding, on a commercial six-lane roadway with medium toheavy traffic, the defendant engaged in conduct that created an unjustifiable risk of death.Accordingly, the defendant's motion to dismiss that count of the indictment charging him withcriminally negligent homicide should have been denied (see People v Mitchell, 213AD2d 562, 562-563 [1995]; People v Senisi, 196 AD2d 376, 379-380 [1994]). Rivera,J.P., Angiolillo, Chambers and Austin, JJ., concur.