| People v Heidgen |
| 2011 NY Slip Op 06494 [87 AD3d 1016] |
| September 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Martin Heidgen, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Judith R. Sternberg,Jacqueline Rosenblum, and Michael Soffer of counsel), for respondent. Cornell Bouse, Garden City, N.Y. (Richard J. Barbuto and Stefani Goldin of counsel), foramicus curiae Nassau County Criminal Courts Bar Association. Anthony Girese, Bronx, N.Y. (Colleen Phillips and Joseph McCormack of counsel), foramicus curiae District Attorneys Association of State of New York.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof,J.), rendered February 28, 2007, convicting him of murder in the second degree (two counts),assault in the first degree (three counts), and operating a vehicle while under the influence ofalcohol (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On July 1, 2005, after spending several hours in a bar in Manhattan, at which he consumed atleast six beers, the defendant attended a friend's party in Merrick in Nassau County. He arrived atthe party, which consisted of a small gathering of his friends, between 11:00 p.m. and midnight.The house where the party was being held was approximately a five-minute drive from theMeadowbrook State Parkway.
At the party, the defendant was seen consuming several alcoholic drinks. Two of thedefendant's friends who were at the party described the defendant as intoxicated or "buzzed."However, neither one observed the defendant stumbling or staggering while he was dancing, norwas he observed to be slurring his words.
The defendant remained at the party for 1½ to 2 hours before leaving in his pickuptruck. Despite having previously received offers to sleep over or utilize a designated driver ratherthan drive after drinking, the defendant chose to get into his pickup truck and drive whileintoxicated.
Shortly before 2:00 a.m. on July 2, 2005, Elizabeth Serwin was driving southbound in thecenter southbound lane of the Meadowbrook State Parkway, more than one mile south of the[*2]exit for Merrick Road, when she saw headlights of anoncoming vehicle also in the same center lane in the distance a "few football fields away." Shetestified that she immediately veered into the right lane and eventually to the shoulder of the roadto her right. She honked her horn three times as an oncoming pickup truck, which was laterdetermined to have been operated by the defendant (hereinafter the pickup truck), passed her. Asshe looked over her shoulder watching the pickup truck travel northbound in the southboundlanes, she observed two other vehicles pulled over on the shoulder of the road. During the timethat Serwin saw the pickup truck, it did not swerve or reduce its speed, which she approximatedto be 70 to 75 miles per hour as it passed her.
Joseph Caruso, also driving south on the Meadowbrook State Parkway, testified that he firstsaw the pickup truck approximately one mile north of the location where Serwin veered out ofthe path of the pickup truck. Caruso saw the headlights of the pickup truck about a quarter of amile away, directly in his path of travel. Caruso attempted to move to the left southbound lane,but the pickup truck tracked him and also moved towards the left southbound lane, causingCaruso to steer back to the center lane to avoid a collision with the northbound pickup truck. Asthe pickup truck was almost upon Caruso's vehicle, Caruso moved into the right southboundlane, just as the pickup truck passed his vehicle. Once the pickup truck passed, Caruso observedthe taillights of the pickup truck in his rear view mirror, and noted that the brake lights neverilluminated during the time he had them in view.
Caruso also noticed that the pickup truck did not veer away or slow down as it headedtowards him. He estimated that the pickup truck was traveling at a rate of speed between 70 and80 miles per hour.
Matthew Sussingham testified that, as he was driving southbound in the right southboundlane of the Meadowbrook State Parkway, just south of the exit ramp for westbound SunriseHighway, he saw the pickup truck traveling northbound in the center southbound lane near theSunrise Highway overpass and coming over a crest over Sunrise Highway approximately 15 to30 yards away, traveling at "highway speed" in the wrong direction towards him. Sussinghamcontinued to watch the pickup truck pass by the exits for Sunrise Highway in his rearview mirror,and never saw it move from the center lane, weave, or slow its rate of travel.
As the pickup truck continued its northbound path in the lanes for southbound traffic on theMeadowbrook State Parkway, Steven Weber, who was operating a motorcycle, saw the pickuptruck traveling the wrong way in the southbound lanes, as Weber watched from the entranceramp for westbound traffic on Sunrise Highway seeking to enter the northbound lanes of theMeadowbrook State Parkway. Weber immediately moved into the left northbound lane of theMeadowbrook State Parkway, pulling up to the median strip parallel to the pickup truck, whichwas in the lane immediately adjacent to the opposite side of the median strip. Weber then keptpace with the pickup truck at a steady speed of 70 miles per hour until he lost sight of it, justsouth of the Babylon Turnpike overpass, due to the obstruction caused by bushes in the medianstrip. It was at this time that Weber heard a crash.
Weber never observed the pickup truck swerve or slow down, or the brake lights illuminate.He also did not see the pickup truck attempt to pull over or stop. Weber observed the defendantoperating the pickup truck and looking straight ahead during the entire time that Weber waswatching the defendant. During that time, Weber saw the lights of another vehicle, traveling inthe southbound lanes of the Meadowbrook State Parkway, exit the parkway.
At the same time that the defendant was driving the wrong way in the southbound lanes ofthe Meadowbrook State Parkway, a limousine was proceeding south in the left southbound laneof the Meadowbrook State Parkway. The limousine encountered the pickup truck headed directlytowards it just north of the Babylon Turnpike overpass. The limousine, driven by StanleyRabinowitz, was carrying a family, consisting of Jennifer Flynn and Neil Flynn, their twodaughters, seven-year-old Katie Flynn and five-year-old Grace Flynn, and Jennifer's parents,Christopher Tangney and Denise Tangney, back home from the wedding of the Tangneys'youngest daughter.[*3]
Upon observing the pickup truck as it was headingdirectly towards the limousine, Rabinowitz attempted to veer into the center southbound lane soas to avoid it. However, there was another southbound vehicle traveling in the center lanealongside the limousine preventing Rabinowitz from completing the maneuver. ChristopherTangney, who was seated in the rear of the limousine facing forward, thereby allowing him to seethe road through the windshield, recounted that the pickup truck "moved over . . .towards us. And then Mr. Rabinowitz tried to move again. And then the truck . . .seemed to follow us." The jury was able to observe a video of the path that the pickup truck tookimmediately before it collided with the limousine, tracking the limousine's movement asdescribed by Christopher Tangney in his testimony, since the limousine was equipped with acamera which recorded the movement of the pickup truck during the seconds immediatelypreceding the collision.
The pickup truck collided head-on with the limousine, apparently having tracked thelimousine's movement, crushing and killing Rabinowitz, decapitating Katie Flynn, and causingsevere, and, in some instances, life-threatening, injuries to the remaining passengers in thelimousine.
Steed Davidson, the driver of the vehicle which had been traveling southbound in the centersouthbound lane of the Meadowbrook State Parkway adjacent to the limousine at the time of thecollision, testified that the pickup truck was "coming quickly" towards his vehicle and thelimousine, and did not slow down before the crash. He also testified that the pickup truck did notattempt to exit the parkway or go towards the shoulder of the roadway.
Melissa Graffeo, one of the first people on the scene of the collision after it occurred, calledthe 911 emergency number at 2:01 a.m. The police officers responding to the scene of thecollision observed that the defendant was sitting upright with his eyes open.
The defendant was placed under arrest at the scene, and was later informed of his arrest byInvestigator Eric Baez of the New York State Police. Upon being so advised, the defendant toldthe police that from the time he had moved to New York from Arkansas the previous October,"everything was going wrong" and "nothing he did was ever enough." The defendant recountedto the police that he had argued with his ex-girlfriend over the phone, had financial problems,had recently lost his grandmother with whom he had been close, and was very upset, depressed,and in a "self-destructive mode."
The jury convicted the defendant of two counts of murder in the second degree (Penal Law§ 125.25 [2]), three counts of assault in the first degree (Penal Law § 120.10 [3]),and two counts of operating a vehicle while under the influence of alcohol (Vehicle and TrafficLaw § 1192). The defendant was sentenced to an indeterminate term of imprisonment of18 years to life on his convictions of each count of murder in the second degree, a determinateterm of 18 years of imprisonment plus five years of postrelease supervision on his convictions ofeach count of assault in the first degree, and a definite term of 180 days of incarceration on hisconvictions of each count of operating a vehicle while under the influence of alcohol, all terms torun concurrently.
Contrary to the People's contention, the defendant's argument that the evidence was legallyinsufficient to support the convictions of murder in the second degree under Penal Law §125.25 (2) and assault in the first degree under Penal Law § 120.10 (3), crimes whichrequire proof of depraved indifference, is preserved for appellate review (see CPL 470.05[2]; see also People v Squires, 68AD3d 900 [2009]; People vBeriguete, 51 AD3d 939 [2008]; People v Mendez, 34 AD3d 697 [2006]). Viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to support the defendant's convictions of depravedindifference murder and assault in the first degree.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony andobserve demeanor (see People v Mateo, 2 NY3d 383 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490 [1987]). The question of whether thedefendant possessed the mens rea of depraved [*4]indifference tohuman life is highly fact-sensitive, requiring a case-by-case analysis. Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). Accordingly, the decisions of the Court of Appeals in People v Prindle (16 NY3d 768[2011]) and People v Valencia (14NY3d 927 [2010], affg 58 AD3d 879 [2009]), relied upon by the defendant and ourdissenting colleague, do not foreclose a finding of depraved indifference under the particularfacts of this case, notwithstanding that the defendant's blood alcohol concentration registered.28%.
A person acts with depraved indifference if he or she does not care if another is injured orkilled (see People v Feingold, 7NY3d 288, 296 [2006]). " 'Depraved indifference murder [or assault] differs from intentionalmurder [or assault] in that it results not from a specific, conscious intent to cause death [orinjury], but from an indifference to or disregard of the risks attending defendant's conduct' "(id. at 293, quoting People vGonzalez, 1 NY3d 464, 467 [2004]; see People v Suarez, 6 NY3d 202, 214 [2005] ["(D)epravedindifference is best understood as an utter disregard for the value of human life—awillingness to act not because one intends harm, but because one simply doesn't care whethergrievous harm results or not"]; People v Jernatowski, 238 NY 188, 191 [1924]).
The evidence presented to the jury established that, 15 to 30 minutes before the collision, thedefendant, although intoxicated, remained steady on his feet and held conversations withoutslurring his speech. Furthermore, the other drivers who observed the pickup truck traveling onthe Meadowbrook State Parkway testified that the pickup truck maintained a steady speed,successfully negotiated the curves of the parkway, and stayed within one lane of travel, except inthose instances where the defendant apparently tracked the headlights of the oncoming vehiclesas they attempted to avoid the pickup truck. The testimony also established that, for theapproximately 2.5 miles that the defendant was observed driving the wrong way on theMeadowbrook State Parkway prior to the impact with the limousine, the defendant passed"wrong way" signs, the back side of highway signs, at least five sets of headlights shining directlyat him, at least one set of headlights suddenly veering to one side, and taillights on the other sideof the guide rail. In addition, he was confronted with a horn blaring three times and the noise of aloud motorcycle on the other side of the median strip keeping pace with him in the samedirection. Given all of the foregoing evidence, it was reasonable for the jury to conclude that thedefendant was aware that he was driving the wrong way and deliberately chose to continue toproceed in the northbound direction, against traffic, without regard for the grave danger tohimself and others traveling on the parkway that night.
The defendant's reliance on People vValencia (14 NY3d 927 [2010]) is misplaced, and does not dictate a different result,notwithstanding that it also involved an intoxicated motorist traveling the wrong way on aparkway. Contrary to the analysis by our dissenting colleague, this matter is distinguishable fromValencia in that there was no evidence in Valencia that the defendant tracked theother vehicles when they changed lanes to avoid him. Indeed, Valencia's counsel specificallyargued that there was no evidence of a disregard for human life, relying on the fact that thedefendant did not swerve into the path of the other drivers.
Moreover, in rendering the verdict that the defendant was guilty of assault in the first degreepursuant to Penal Law § 120.10 (3), the trial court in Valencia, after a bench trial,stated that the evidence established that the defendant was highly intoxicated at the time of theaccident and "was simply oblivious to all of the indices of alarm and warning attendant tohis dangerous travel on the parkway" (emphasis added). Unlike Valencia, the evidencehere did not establish that the defendant was intoxicated to a degree of total oblivion or mania(cf. People v Coon, 34 AD3d869, 870 [2006] [the defendant "suffered an atypical idiopathic reaction to the substancesuch that, at the time of the attack, he was experiencing cocaine intoxication delirium"]). Thetestimony of eyewitnesses and the People's expert established that the defendant here was neithertotally oblivious nor incapable of comprehending the gravity of his actions due to hisintoxication. Here, the People presented evidence showing that when the defendant was last seenby his friends at the party, less than 30 minutes before the crash, and when the other driversobserved him driving the wrong way on the Meadowbrook State Parkway, he was not "simplyoblivious," as was the case in Valencia.
Furthermore, the Valencia trial court found the defendant to have the requisite mens[*5]rea to commit depraved indifference assault based upon hisdecision earlier in the evening to drink heavily, knowing that he would be operating his vehiclelater on that evening, and not as a result of his actions at the time that he was driving in thewrong direction on the parkway. In reversing the conviction, this Court rejected the prosecution'sargument that "the mens rea component of depraved indifference assault may be satisfied byconsidering the defendant's state of mind at a point much earlier in time than theaccident, when the defendant allegedly made a conscious decision to consume an excessiveamount of alcohol with the awareness that he subsequently would be operating a motor vehicle"(People v Valencia, 58 AD3d at 880 [emphasis added]).
Unlike the trial court's finding in Valencia, the jury here was presented with evidencewhich established that the defendant's mens rea was formed when he continued to travel in thewrong direction on the Meadowbrook State Parkway and tracked other vehicles that weretraveling in the correct direction and attempting to get out of his way. Given the defendant'sstatements to the police that he was in a "self-destructive mode" and depressed about the state ofhis life at the time, it was reasonable for the jury to find that the defendant possessed the requisitemens rea for depraved indifference at the time that the impact with the limousine occurred. Thisis especially germane since the jury also had before it a letter written by the defendant, whileincarcerated and awaiting trial, to one of his friends, wherein he recounted the statements hemade to the police and proclaimed that he was lying at the time that he made the statements in anattempt to paint himself "as an unfortunate victim of circumstance worthy of leniency," ratherthan telling the police the truth about having been drinking at a friend's house that night. In sodoing, the defendant confirmed the accuracy of the police officers' testimony concerning thestatements he made to them. In light of the foregoing, the jury's finding that the defendantexhibited a depraved indifference to the lives of those he encountered on the Meadowbrook StateParkway, as well as his own, was warranted (see People v Suarez, 6 NY3d at 214;People v Jernatowski, 238 NY at 191).
Furthermore, the defendant did not testify on his own behalf. Thus, the only manner in whichthe jury heard the defendant's "own words" concerning his state of mind was through thetestimony of the police officers, who recounted the defendant's statement to them at the hospital,and through the defendant's letter. In that letter, the defendant admitted that he would lie toprotect his friends and family and to make himself appear sympathetic and not as a "hooligan."Despite the defendant's admission of his propensity to lie, the dissent relies upon the statementscontained in this letter, written after the defendant was made aware that he was facing multiplemurder and assault charges, rather than upon the defendant's earlier self-incriminating statementsmade to the police at a time when he did not yet realize he was facing such charges. Given thejury's ability to consider all of the defendant's statements and to weigh the veracity of each inlight of the defendant's acknowledgment that he had no compunction about lying, we areunwilling to set its verdict aside as against the weight of the evidence on the basis of this letter.
Our dissenting colleague further notes that the defendant's blood was drawn at 2:40 a.m.without his consent because the defendant "was so intoxicated" and was "unable to provide"consent. However, the jury also heard evidence that the defendant told the police that he was"basically knocked out" as a result of the impact, and next remembered being in the hospital. Inaddition, the jury heard testimony that the defendant's pickup truck suffered "severe front-enddamage," and viewed numerous photographs documenting such damage. Moreover, thetestimony established that the defendant was removed from the scene in a neck brace on abackboard, and eventually was moved to an intensive care unit of a nearby hospital after beingtaken for computed axial tomography scans, commonly known as CAT scans, and X rays. Thus,contrary to the conclusion reached by the dissent, we cannot say that the defendant's inability toprovide consent when his blood was drawn was necessarily a result of his consumption ofalcohol earlier in the evening.
In addition, the jury heard testimony from the prosecution's expert, a forensic toxicologist,that an average male, weighing 180 pounds and standing five feet, 10 inches, with a bloodalcohol concentration of .28%, would necessarily have had approximately 14 "drinks" in hissystem, and if that average male began drinking at 4:30 p.m. and continued until 1:00 a.m. or1:30 a.m., he would necessarily have had 20 "drinks" in his system, with a drink equaling a unitof alcohol such [*6]as 12 ounces of beer or one shot of liquor.The jury also heard testimony from the People's expert that a blood alcohol concentration of.28% would not prevent a person, such as the defendant, from reacting to different stimuli, suchas oncoming headlights, the reverse side of highway signs, and blaring car horns, for a period of2½ minutes. The expert also stated that a person's response to stimuli would be completelyshut down only if the person were rendered unconscious. The jury was also informed that anintoxicated person on an unfamiliar road confused by his or her surroundings would not beexpected to maintain a steady speed and drive in a straight line, as the defendant did. Thus, theexpert's testimony, which was wholly uncontroverted by the defendant, when considered with thetestimony of those who observed the defendant immediately before the impact, provided a basisfor the jury to reasonably determine that the defendant had the requisite mens rea to commitdepraved indifference murder and assault at the time that the impact occurred.
Similar to the decision in People v Valencia, the Court of Appeals' decision in People v Prindle (16 NY3d 768[2011]) does not warrant reversal of the defendant's convictions of depraved indifference murderand assault. The evidence in Prindle established that the defendant was driving erraticallyon a two-way road in an attempt to avoid apprehension by the police for the larceny he had justcommitted. Here, the defendant was not attempting to avoid the police at the time of the accident.Rather, the evidence established that the defendant entered a divided highway against thedirection of the "wrong way" signs, accelerated to and maintained a speed of 70 miles per hour,ignored numerous other obvious indicia that he was traveling the wrong way against traffic, andtracked oncoming vehicles that attempted to avoid his vehicle, all while he was in aself-described "self-destructive mode."
The dissent notes that the defense presented testimony from an accident reconstruction expertthat, applying a linear momentum formula, the defendant's pickup truck was traveling at 33 milesper hour. However, this same expert also testified that application of a time-distance formulayields the conclusion that the defendant's pickup truck could have been traveling at 38 miles perhour at the time of impact, and that the expert could not calculate the speed at which the vehiclewas traveling at any time prior to impact. Nevertheless, the jury was presented with testimonyfrom Weber that, immediately prior to the impact, at the point that the northbound andsouthbound lanes for travel on the Meadowbrook State Parkway became separated by a medianstrip landscaped with bushes, Weber kept pace with the defendant's vehicle while traveling at aspeed of 70 miles per hour. In any event, the fact that the defendant continued to drive in anorthbound direction, despite being presented with numerous indicia that he was traveling in thewrong direction, into the path of oncoming vehicles headed in the correct southbound directionon the Meadowbrook State Parkway, while traveling at speeds appropriate for travel on ahighway evinced his depravity (cf.People v Lazartes, 23 AD3d 400, 405 [2005] [the fact that the defendant was speedingon a highway, standing alone, did not establish depravity, especially where the "unrefutedevidence indicated that, notwithstanding occasionally achieving excessive rates of speed, thedefendant repeatedly slowed his vehicle where the traffic conditions so warranted"]). Theevidence, thus, demonstrated that the defendant acted with depraved indifference to the graverisk of injury to other persons traveling on the highway, as well as to himself.
Even though our dissenting colleague recognizes that it is not established in New York thatintoxication can be asserted as a defense to conduct envincing depraved indifference that resultsfrom severe inebriation, he nevertheless suggests that "we must all admit that without a mens reaof recklessness, the statutory prohibition contained in Penal Law § 15.05 (3) is nolonger applicable." The dissent posits this conclusion even though this Court, inValencia, noted that "we have no occasion to decide the separate question of whethervoluntary intoxication may negate the mens rea of depraved indifference" (People vValencia, 58 AD3d at 880). Further, Judge Graffeo, concurring with the Court of Appeals'majority in that matter, echoed the fact that this was the current state of the law in New Yorkwith respect to this issue (see People v Valencia, 14 NY3d at 928). Judge Graffeoexplained that, under the "objective circumstances" standard set forth in People vRegister (60 NY2d 270 [1983], cert denied 466 US 953 [1984]) for depravedindifference offenses, "it was recognized that the intoxication defense did not apply to thedepraved indifference element" (People v Valencia, 14 NY3d at 929 [citation omitted]),and asked the Legislature to address the question of whether there had been a change in the lawgiven the shift from the "objective circumstances" [*7]standard tothe "subjective [culpable] state of mind" standard set forth in People v Feingold (7 NY3d 288 [2006]) (People vValencia, 14 NY3d at 931). It would not be appropriate for this Court, as the dissentsuggests, to evaluate this case as if the Legislature had resolved this issue in favor of acceptingvoluntary intoxication as a defense to an element of depraved indifference. To date, theLegislature has not addressed this issue. In short, we decline to apply the approach urged by thedissent since it has neither been adopted by the Legislature nor announced by the Court ofAppeals.
Thus, contrary to the approach taken by our dissenting colleague, the evidence presented tothe jury established that the defendant engaged in reckless conduct which created a "grave" riskof death, thereby evincing a depraved indifference to human life. Accordingly, we conclude thatthe People established the defendant's guilt of two counts of murder in the second degree andthree counts of assault in the first degree beyond a reasonable doubt.
Further, the Supreme Court properly denied the defendant's motion pursuant to CPL 330.30to set aside his conviction on the ground that the jurors improperly considered the defendant'sprior arrest for and conviction of driving while intoxicated. "Improper influence includes evenwell-intentioned jury conduct which tends to put the jury in possession of evidence notintroduced at trial" (People v Maragh, 94 NY2d 569, 573 [2000] [internal quotationmarks omitted]). A defendant must demonstrate that the alleged misconduct impaired his or herright to a fair trial (id. at 574; see People v Gardella, 55 AD2d 607 [1976]).
One of the jurors testified, at a hearing held in connection with the defendant's motion, thatanother of the jurors stated during deliberations that the defendant had "a prior DWI" when hewas in college. However, upon hearing that information, that juror did not immediately changeher vote from a conviction for manslaughter to a conviction for murder. She stated that theinformation had an influence on her, but that it was not the only influence, even though, in astatement she provided to the prosecution, she denied that the information had any influence onher vote. Moreover, each of the other jurors who testified at the hearing stated that no suchstatement was made. Thus, the evidence adduced at the hearing failed to establish the defendant'sclaim of juror misconduct (see People vMcDonald, 40 AD3d 1125 [2007]).
In addition, the trial court providently exercised its discretion in denying, without a hearing,that branch of the defendant's motion which was to set aside the verdict on the ground that thejury improperly deliberated about the jail time the defendant could receive if he were convictedof manslaughter in the second degree as opposed to murder in the second degree, because theevidence submitted with the motion did not demonstrate that the jury's determination of guilt orinnocence was affected by any such consideration (see People v Holmes, 72 AD2d 1, 6[1979]; People v Bautista, 25 AD3d341, 342 [2006]).
The trial court likewise providently denied, without a hearing, that branch of the defendant'smotion which was to set aside the verdict on the ground that the jury deliberated about thedefendant's decision not to testify and his failure to call a specific witness to testify, because theevidence submitted with the motion did not establish that the jury was subject to an outsideinfluence with respect to these issues (see People v Camacho, 293 AD2d 876, 877[2002]; People v Foss, 267 AD2d 505, 510 [1999]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dickerson and Austin,JJ., concur.
Cohen, J., dissents in part and concurs in part, and votes to modify the judgment, on the lawand the facts, by reducing the conviction of murder in the second degree (two counts) tomanslaughter in the second degree (two counts) and the conviction of assault in the first degree(three counts) to assault in the second degree (three counts), and vacating the sentences imposedon those counts and, as so modified, affirming the judgment and remitting the matter to theSupreme Court, Nassau County, for resentencing on those counts, with the followingmemorandum:[*8] One could hardly imagine a greater humantragedy resulting from the lethal mix of excessive alcohol consumption and driving than thatwhich occurred on the Meadowbrook State Parkway in the early morning hours of July 2, 2005.Two innocent people, including a child, were killed and several seriously injured by the head-oncollision caused by the defendant while he was in, by any standard, a highly intoxicated state.Lives were taken needlessly and the lives of many still living were shattered forever. It is beyondcavil that the evidence established that the defendant committed homicide. However, he did notcommit murder, as defined within the framework of the Penal Law, and his prosecution on twocounts of depraved indifference murder constituted an inappropriate expansion and wrongfulapplication of our current homicide laws.
For the reasons more fully set forth below, I most respectfully dissent and would modify thejudgment, on the law and facts, by reducing the convictions of murder in the second degree (twocounts) to manslaughter in the second degree (two counts), reducing the convictions of assault inthe first degree (three counts) to assault in the second degree (three counts), and vacating thesentences on said convictions and, as so modified, affirming the judgment and remitting thematter to the Supreme Court, Nassau County, for resentencing on the reduced counts. In short,even when viewing the particular facts of this case most favorably to the prosecution (seePeople v Contes, 60 NY2d 620, 621 [1983]; see also Jackson v Virginia, 443 US307, 319 [1979]; People v Kennedy, 47 NY2d 196, 203 [1979]), by applying thestandards set forth in People vValencia (14 NY3d 927 [2010]), and, more recently in People v Prindle (16 NY3d 768[2011]), they are legally insufficient to support the convictions of depraved indifference murderin the second degree and assault in the first degree which lie at the very heart of this appeal.Furthermore, even if the evidence were legally sufficient, the convictions were certainly againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]). In all other respects, I agree with the majority'sconclusions.
On Friday, July 1, 2005, the then 24-year-old defendant met a friend at a bar in Manhattan,where from 4:30 p.m. to 7:30 p.m., he drank six 12-ounce bottles of beer while in his friend'scompany. The friend left the bar at 7:30 p.m., but the defendant remained. The defendanteventually left the bar and traveled to the Nassau County home of a friend to attend a party. Thedefendant arrived at the party sometime between 11:00 p.m. and midnight. At this party, hisfriends observed the defendant drinking "a few beers" and two drinks consisting of beer withshots of whiskey and Irish cream liquor. The friends who saw him at this party described him as"intoxicated" and "buzzed." The friends also testified that the defendant was in a "good mood,"that he had gotten the telephone number of the bartender at the bar they frequented, and that thefriends and the defendant discussed plans for the upcoming weekend. The defendant remained atthis party for a little more than 1½ hours and, although he had never done so before, leftwithout saying goodbye to anyone.
At roughly 2:00 a.m. on the morning of July 2, 2005, the defendant, after driving his pickuptruck the wrong way on the Meadowbrook State Parkway for approximately 2½ miles,collided head-on with a limousine operated by Stanley Rabinowitz, which carried Jennifer Flynn,Neil Flynn, Katie Flynn, Grace Flynn, Christopher Tangney, and Denise Tangney. The majoritycorrectly notes that the defendant's blood alcohol concentration (hereinafter BAC) at the timewas .28%. That BAC is 3½ times the level that section 1192 (2) of the Vehicle and TrafficLaw defines as rendering a driver "intoxicated." In fact, at approximately 2:40 a.m., thedefendant was so intoxicated that his blood was drawn at a nearby hospital by Nurse DorothyBusco, upon the request of New York State Trooper Daniel O'Hare, without the defendant'sconsent, as he was incapable of providing consent. Indeed, expert testimony established that thedefendant's BAC would necessarily be the result of roughly 14 drinks in his system at the time ofthe accident, and suggested that he consumed at least 20 drinks from 4:30 p.m. until the time thathis BAC was tested.
Both depraved indifference murder in the second degree (Penal Law § 125.25 [2]) anddepraved indifference assault in the first degree (Penal Law § 120.10 [3]) require a mensrea of recklessness "[u]nder circumstances evincing a depraved indifference to human life."Manslaughter in the second degree (Penal Law § 125.15 [1]) requires only a mens rea ofrecklessness. Although both manslaughter in the second degree and "depraved indifference"crimes require, at the very least, a culpable mental state of recklessness, the criminal conduct iselevated to depraved indifference if [*9]there exist, as describedabove, "circumstances evincing a depraved indifference to human life" (Penal Law §125.25 [2]). When one acts with depraved indifference, one's conduct is so wanton, so deficientin a moral sense, so devoid of regard of the life or lives of others, and so blameworthy as towarrant the same criminal liability as that which the law imposes upon a person whointentionally causes the death of another (see People v Suarez, 6 NY3d 202, 211 [2005]). Indeed,"[D]epraved indifference is best understood as an utter disregard for the value of humanlife—a willingness to act not because one intends harm, but because one simply doesn'tcare whether grievous harm results or not. Reflecting wickedness, evil or inhumanity, asmanifested by brutal, heinous and despicable acts, depraved indifference is embodied in conductthat is 'so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or livesof others, and so blameworthy' as to render the actor as culpable as one whose consciousobjective is to kill" (id. at 214, quoting People v Russell, 91 NY2d 280, 287[1998]; see also People v Feingold,7 NY3d 288, 296 [2006]).
Furthermore, this mens rea and the relevant actus reus must both be present at a time close toone another, i.e., the People, in order to establish the culpable mental state of depravedindifference, must prove that the act of consuming alcohol was not "too temporally remote" fromthe operation of a motor vehicle (seePeople v Valencia, 14 NY3d 927, 934 [2010]).
Intoxication is not a defense to a criminal charge (Penal Law § 15.25). This Court hasrecognized that intoxication, like a mitigating defense, "merely reduces the gravity of the offenseby negating an element" (People vWalton, 70 AD3d 871, 874 [2010], quoting People v Harris, 98 NY2d 452, 475[2002]). In People v Walton, we recognized that an intoxication defense can mitigatedepraved indifference murder to the lesser offense of reckless manslaughter (see People vWalton, 70 AD3d at 874, citing People v Harris, 98 NY2d at 475; People v Atkinson, 7 NY3d 765,766 [2006]; People v Jean-Baptiste,44 AD3d 792, 793 [2007], affd 11 NY3d 539 [2008]; People v McPherson, 35 AD3d765, 766 [2006]). Furthermore, since the shift from the "objective circumstances" standardset forth in People v Register (60 NY2d 270 [1983], cert denied 466 US 953[1984]) to the "subjective [culpable] state of mind" standard set forth in People v Feingold (7 NY3d 288[2006]; People v Valencia, 14 NY3d at 931), the mens rea for depraved indifferencemurder is no longer merely recklessness. In concurring with the Court of Appeals' decision in People v Valencia (14 NY3d 927[2010]), Judge Graffeo recognized that "there remains [a] disagreement between courts as towhether the transformation of depraved indifference into a subjective state of mind precludesintoxication as a defense to that mens rea" (id. at 931), and that the Court of Appeals leftopen the issue of "[whether] the voluntary consumption of alcohol to the point of extremeinebriation preclude[s] the formation of a depravedly indifferent state of mind" (id. at928). However, at the very least, we must all admit that without a mens rea of recklessness, thestatutory prohibition contained in Penal Law § 15.05 (3) is no longer applicable.
"A person who fails to perceive a substantial and unjustifiable risk by reason of his [or her]intoxication acts recklessly" (People vElysee, 12 NY3d 100, 105 [2009]). A person who acts with depraved indifference hasno specific, conscious intent to cause a specific result, i.e., the death of another person orpersons, but possesses the mens rea of being indifferent to, unconcerned with, and/or acting withcomplete disregard of the grave risks of death created by his or her conduct (see PenalLaw § 125.25 [2]; People v Feingold, 7 NY3d at 294-296; People v Gonzalez, 1 NY3d 464,467-468 [2004]). Furthermore, depravity requires the conscious appreciation of a grave risk. Ifdeath results from such wanton depraved act, the result rightfully calls for a sentencecommensurate with intentional murder, a class A felony, including a life sentence ofincarceration.
In People v Valencia, the evidence presented included that the defendant: had a BACthree times the legal limit; drove at night in the wrong direction on a parkway at a high rate ofspeed; failed to stop or slow down despite attempts by other drivers to warn him of the dangershe was creating; and, after traveling in this manner for four miles, crashed head-on into onevehicle and then careened into another vehicle. There, the defendant alleged that he " 'didn'tknow' what had [*10]happened and 'didn't care' " (People vValencia, 14 NY3d at 932). Yet, despite that statement, and the other evidence presented attrial, the Court of Appeals concluded that the defendant there was intoxicated and recklesslydriving, but not acting with depraved indifference (see People v Valencia, 14 NY3d 927 [2010]). It is my opinion thatthe instant matter is virtually indistinguishable from People v Valencia.
In People v Prindle, decided by the Court of Appeals in February 2011, thedefendant, fleeing apprehension for the theft of a $400 snowplow blade, led police on an erraticchase on a two-way road, running at least five red lights, repeatedly driving at high speeds,including in the lanes of oncoming traffic, before smashing into the rear driver's side of thevictim's vehicle, killing her (People vPrindle, 16 NY3d 768 [2011]). Again, the Court of Appeals determined that thedefendant did not act with depraved indifference.
As a matter of law, the evidence in this case was not legally sufficient to establish that thedefendant exhibited depraved indifference and, accordingly, I would reduce the defendant'sconvictions of depraved indifference murder in the second degree and assault in the first degreeto the lesser-included offenses of manslaughter in the second degree and assault in the seconddegree, respectively, as the defendant is no more depravedly indifferent than were the defendantsin People v Prindle or People v Valencia. The majority concludes that whenviewing the evidence in the light most favorable to the prosecution, a reasonable jury couldconclude that the defendant was aware that he was driving "the wrong way and deliberately choseto continue to proceed in the northbound direction, against traffic, without regard for the gravedanger to himself and others traveling on the parkway that night," and that given "the defendant'sstatements to the police that he was in a 'self-destructive' mode . . . , it wasreasonable for the jury to find that [he] possessed the requisite mens rea for depravedindifference at the time that the impact with the limousine occurred." I disagree, and concludethat no rational or reasonable juror could infer that the defendant was suicidal, and acted withdepraved indifference to an appreciated grave risk, merely because he stated that he was in a"self-destructive" mode. Thus, the evidence was legally insufficient to support the essentialelements of murder in the second degree or assault in the first degree. It was not establishedbeyond a reasonable doubt that the defendant was aware of the danger of his conduct, aware ofthe grave and high probability of injury and death his conduct portended, and wholly indifferentto any such probability.
In any event, even if this evidence were legally sufficient, the verdict of guilt on the chargesof murder in the second degree and assault in the first degree is unquestionably against theweight of the totality of the evidence presented at trial. While the majority notes that thedefendant advised police that he was in a "self-destructive" mode, the evidence also establishedthat the defendant wrote from prison to his friend and admitted that much of what he had told thepolice was untrue, including that he and his girlfriend had argued on the night of the party, thathe had financial problems and was in a "self-destructive" mode. Indeed, he stated in this letterthat he had used "a line from a movie" when he told the police that he had been in a"self-destructive mode." He was seeking sympathy; he never stated he was suicidal, and areasonable view of the evidence does not establish that he was on a suicide mission wherein hecared not whose life or how many lives he took along the way. It would be a vast andunreasonable leap to equate his statement that he was in a "self-destructive" mode, even if it werenot subsequently revealed to be feigned, with a suicide mission, particularly in light of all theevidence presented. Indeed, in the same letter in which he admitted that he lied to the police, heexpressed embarrassment as to the partying lifestyle he and his friends enjoyed and stated that his"self-destructive" comment was a ruse and an attempt to deflect the opinion that they were all "abunch of hooligans and . . . should be punished as such." I am unwilling to dismissthe defendant's own repudiation of the alleged possible suicide mission. The evidence alsoincluded the defendant's decidedly nonsuicidal demeanor and actions, such as his "good mood"and optimistic outlook, in that he was making plans with friends for the remainder of the holidayweekend less than an hour before the accident while "partying" with his friends. Still further, ifthe defendant were truly making a conscious effort to kill himself, without regard to whom hetook with him, he certainly had ample opportunity to do so earlier on his 2½ milewrong-way drive on the Meadowbrook State Parkway, as he had encountered at least threevehicles prior to the limousine which carried his victims.[*11]
The majority also suggests that the testimony that "thedefendant's vehicle apparently tracked the headlights of the oncoming vehicles as they attemptedto avoid the defendant's vehicle" supports the jury's verdict based on the theory that the defendantmay have been suicidal. Again, I most respectfully disagree.
The People presented the testimony of Dr. William Closson, an expert in forensic toxicology.Dr. Closson explained that alcohol reduces the functioning of the brain, and that a .28% BACwould result in a reduced ability to perform multiple tasks simultaneously, resulting in tunnelvision such that the intoxicated person only sees those things directly in front of him or her.Accordingly, Dr. Closson also testified that oncoming headlights would be within the view of anintoxicated driver, and if those headlights suddenly veered to one side, the driver would beexpected to react. Dr. Closson further testified that the reaction time of an intoxicated driver tostimuli, such as headlights, is greatly diminished.
I turn now to the testimony of the witnesses to the collision, including Reverend SteedDavidson, Denise Tangney, and Christopher Tangney. The testimony of these witnessesestablished that Reverend Davidson was lawfully operating his vehicle in the center southboundlane of the Meadowbrook State Parkway, when the limousine operated by Mr. Rabinowitz passedhim on the left. Their testimony also established that the defendant was in the center southboundlane and then moved into the limousine's lane just prior to the collision, but that Mr. Rabinowitzcould not veer away from the defendant's vehicle because Reverend Davidson's vehicle wasdirectly to his right. I reject the majority's argument that he was "tracking" headlights because hewas suicidal, and conclude that such an interpretation arises from a misapprehension of theexpert's testimony. Given the defendant's probable tunnel vision, his lane change to thelimousine's lane was more likely a reaction to his observation of the headlights of Davidson'svehicle. Such an action, in my opinion, militates against the conclusion that the defendant actedwith depraved indifference. Furthermore, the defendant's accident reconstruction expert opined,after applying a linear momentum analysis, that at the time of impact the defendant's truck wasmoving at 33 miles per hour, rather than the 70-75 miles per hour estimated by the other driverson the Meadowbrook State Parkway who had observed the defendant traveling over the relevant2½-mile stretch. Such reduction in speed also militates against any suggestion by themajority that the defendant was on a "suicide mission."
There is no credible evidence, just speculation, that the defendant deliberately drove hisvehicle the wrong way on the parkway in wanton disregard of human life and, thus, acted withdepraved indifference towards human life (see People v France, 57 AD2d 432, 434[1977]).
Accordingly, I cannot agree with the majority's attempts to distinguish the Court of Appeals'decisions in People v Prindle (16NY3d 768 [2011]) and People vValencia (14 NY3d 927 [2010]) from the facts before us. To distinguish People vPrindle would necessitate a finding that the evasion of police vehicles in the course of ahigh-speed chase while sober is a less culpable state of mind than driving on the wrong side of ahighway at 70 miles per hour, at night, in a highly intoxicated state. Likewise, distinguishingPeople v Valencia necessitates finding, in the evidence presented to the jury, that thedefendant was neither totally oblivious nor incapable of apprehending the gravity of his actionsdue to his intoxication. I do not subscribe to such conclusions.
While clearly not available at the time this defendant was charged, I take judicial notice that,two years after this incident—only months following the defendant's conviction in2007—and, as indicated in the relevant bill jacket, at least partially in response to thismatter, the Legislature defined the new crime of aggravated vehicular homicide (see L2007, ch 345), a class B felony punishable by an indeterminate prison sentence ranging from8
Viewing the evidence in a light most favorable to the prosecution, there is scant, if any,evidence from which a jury could reasonably infer that the defendant possessed the mens rearequired to convict the defendant of a depraved indifference crime. Thus, I find no valid line of[*12]reasoning which supports the jury's conclusion that thedefendant possessed the mental culpability required to convict him of depraved indifferencemurder in the second degree or assault in the first degree. The defendant was too inebriated toform such a mens rea.
While the almost unspeakable horror caused by the defendant's actions is enough to evokestrong notions that injustice and inequity would result if the convictions of murder in the seconddegree and assault in the first degree were reduced, I respectfully suggest that we must not giveany legal weight to the obviously tragic result of the collision when evaluating thedefendant's state of mind. We must strictly evaluate and construe the defendant's actions inconjunction with his culpable mental state at the time of the incident when determining whatcrime was actually committed. After doing so, and weighing the evidence developed at trial, theconvictions of the depraved indifference crimes cannot stand. The defendant was highlyintoxicated and he was a operating a motor vehicle. The defendant recklessly committed crimes,including homicide, and his punishment should be commensurate with these crimes.
Accordingly, I would reduce the defendant's conviction of the two counts of murder in thesecond degree to manslaughter in the second degree (see People v Valencia, 14 NY3d 927 [2010]) and, concomitantly,reduce his conviction of the three counts of assault in the first degree to three counts of assault inthe second degree, vacate the sentences imposed thereon, and remit the matter to the SupremeCourt, Nassau County, for resentencing on those counts.