| People v Goldblatt |
| 2012 NY Slip Op 06093 [98 AD3d 817] |
| August 30, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Peter B.Goldblatt, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Warren County (Hall, J.),rendered February 4, 2011, upon a verdict convicting defendant of the crimes of aggravatedvehicular homicide, vehicular manslaughter in the first degree, manslaughter in the seconddegree (two counts), assault in the third degree, reckless endangerment in the second degree,driving while intoxicated (two counts) and reckless driving.
At about 11:20 p.m. on June 24, 2010, defendant was driving a sport utility vehicle south onGolf Course Road in the Town of Warrensburg, Warren County. Seven individuals who workedat nearby Camp Echo Lake were standing off the west side of the road at a trailhead. Defendant'svehicle, traveling at an estimated speed of 55 miles per hour in a 40 mile-per-hour zone, wentpartially off the road striking and killing two young adults. When State Police arrived, theyobserved defendant to be visibly intoxicated. He initially refused to take a breath test, butsubmitted to a test about two hours later, recording a blood alcohol content of .11%, which wasextrapolated to have been approximately .158% (nearly twice the legal limit) at the time of theaccident. Defendant was indicted for aggravated vehicular homicide, vehicular manslaughter inthe first degree, manslaughter in the second degree (two counts), reckless driving, driving whileintoxicated (two counts), assault in the third degree, and reckless endangerment in the seconddegree. A jury convicted him of all counts and County Court [*2]sentenced him to concurrent prison terms, the longest of which was8
The crime of aggravated vehicular homicide was added to the Penal Law in 2007 (seeL 2007, ch 345, § 2) as part of legislation creating stricter laws with strong penalties forthose who cause personal injury or death to others when driving while intoxicated (seeSenate Introducer Mem in Support, 2007 McKinney's Session Laws of NY at 1857-1858). Theelements of aggravated vehicular homicide are statutorily defined as being comprised of twoexisting crimes, reckless driving (see Vehicle and Traffic Law § 1212) andvehicular manslaughter in the second degree (see Penal Law § 125.12), as well asany one of seven exacerbating factors, which, as relevant here, include "caus[ing] the death ofmore than one other person" (Penal Law § 125.14 [4]).[FN1]It is undisputed that the evidence sufficiently established vehicular manslaughter in the seconddegree and the exacerbating factor of more than one death. Defendant argues, however, that theevidence did not demonstrate that he engaged in reckless driving.
Reckless driving consists of "driving or using any motor vehicle . . . in amanner which unreasonably interferes with the free and proper use of the public highway, orunreasonably endangers users of the public highway" (Vehicle and Traffic Law § 1212). Itis a misdemeanor with a maximum punishment for a first offense of a $300 fine and 30 days injail (see Vehicle and Traffic Law §§ 1212, 1801).[FN2]It has long been recognized that reckless driving "calls for evidence showing something morethan mere negligence" (People v Grogan, 260 NY 138, 143 [1932]; see Matter ofSheridan v Fletcher, 270 App Div 29, 32 [1945]). Determining whether conduct rises to thelevel of unreasonable interference or endangerment such that it constitutes the requisiterecklessness involves the presence of additional aggravating acts or circumstances beyond asingle violation of a rule of the road (see People v Grogan, 260 NY at 143-144;People v Lamphear, 35 AD2d 305, 308 [1970]; see generally Carrieri, PracticeCommentaries, McKinney's Cons Laws of NY, Book 62A, Vehicle and Traffic Law §1212 at 47-48; Campbell, Fisher and Mansfield, Defense of Speeding, Reckless Driving andVehicular Homicide § 13.02; cf. People v Frisbie, 114 AD2d 587, 588-589[1985]). Thus, although violating the speed limit may not be enough by itself, speed pluscrossing into the passing lane when the view of oncoming traffic is not clear is sufficient (seePeople v Armlin, 6 NY2d 231, 232-233 [1959]; People v Lamphear, 35 AD2d at308-309). Similarly, merely making a U-turn would not constitute reckless driving, but doing soacross three lanes of traffic on a parkway could be considered reckless (see People v McGrantham, 12 NY3d892, 893-894 [2009]).
We have previously indicated that the voluntary use of alcohol or drugs before driving maybe considered as a factor in the reckless driving analysis (see People v Bohacek, 95 AD3d 1592, 1594-1595 [2012];People v Ladd, 224 AD2d 881, 882 [1996], affd 89 NY2d 893 [1996]). [*3]Nonetheless, it is the manner of operation that is the importantinquiry. "One can drive recklessly without being intoxicated and, [conversely], one can drivewhile intoxicated without being reckless" (People v Starowicz, 207 AD2d 994, 994[1994], lv denied 84 NY2d 1016 [1994] [citations omitted]). In addition, where, as here,reckless driving is an element that elevates a crime, the focus for the reckless driving element isthe manner of operation. Thus, we consider the legal sufficiency and weight of the evidenceregarding the reckless driving element of the crime of aggravated vehicular homicide by suchstandard.
Here, when the proof is viewed in the light most favorable to the People (see People v Delamota, 18 NY3d107, 113 [2011]; People vDiaz, 15 NY3d 764, 765 [2010]), there was a confluence of factors such that recklessdriving was established by legally sufficient proof. There was proof that defendant disregarded asign warning of an approaching reduced speed zone and he entered the subsequent speed zonewithout reducing his speed toward 40 miles per hour as required, but instead continued at about55 miles per hour. He failed to maintain his vehicle on the road; it moved toward the shoulderand continued across the paved shoulder onto the gravel and sand next to the road and into thearea where the pedestrians were standing. There was no apparent effort to slow the vehicle as itwent off the road onto the gravel and grass, or to correct the errant path. There was testimony thatno pedestrian in the group stood on any paved part of the roadway at any time and that they hadmoved at least several steps from the road prior to the accident. One of the individuals who wasstruck and killed was initially standing on a cement lip away from the fog line and asphaltshoulder, and she and the others walked even further from the road toward the trees when onemember of the group announced, upon seeing defendant's vehicle about a quarter of a mile away,that a vehicle was approaching. It was estimated that the closest person to the road at the momentof impact was at least five feet off the paved portion.
The group of pedestrians had just come from a "Mad Hatter" party sponsored by the campwhere they worked, and their festive attire included a bright orange hat and aluminum foil. Oneof the individuals who was struck had glow stick rings through the elongated piercings of hisears. Another individual in the group was in the process of lighting a cigarette. It was dry andclear with nearly a full moon lighting the sky, and a lamppost was in the vicinity. Despite goodvisibility and the pedestrians' bright clothing and glowing objects, defendant failed to observethem. In fact, he told police that they were in the road and that one was on a bicycle (which wasnot established by any evidence). Indeed, items belonging to the victims, as well as pieces ofdefendant's vehicle, were found well off the roadway by investigators. Considered cumulatively,there was ample proof of reckless driving by the combination of excessive speed, going off theroad, the distance off the road, no effort to slow down once off the road, and failing to see thepedestrians despite their bright attire and the prevailing clear conditions.
Turning to defendant's weight of the evidence argument, since an acquittal on the aggravatedvehicular homicide count would not have been unreasonable, we must weigh the conflictingtestimony and review the rational inferences that may be drawn from the evidence in determiningwhether the jury justifiably found defendant guilty of this count beyond a reasonable doubt (see People v Danielson, 9 NY3d342, 348 [2007]; People vRomero, 7 NY3d 633, 643-644 [2006]). Defendant's expert, an engineer, testified thatthe street lamps in the vicinity made it more difficult to see anything off the road and he alsoopined that the victims were actually in the roadway when they were hit. This evidence, as wellas other proof presented by defendant, created credibility issues that the jury resolved againstdefendant. Upon a review of the record and according "[g]reat deference" to the jury's"opportunity to view the witnesses, hear the testimony and observe demeanor" (People vBleakley, 69 NY2d 490, 495 [1987]), we are [*4]unpersuaded that defendant's conviction of aggravated vehicularhomicide was against the weight of the evidence.
We consider next defendant's argument that County Court erred by failing to instruct the jurythat its analysis of the reckless driving element of aggravated vehicular homicide should focus onwhether defendant's manner of operating the vehicle violated the statutory language of Vehicleand Traffic Law § 1212 without regard to defendant's intoxication. A charge is sufficientwhere, taken as a whole, it conveys the correct standard to the jury (see People v Medina, 18 NY3d 98,104 [2011]; People v Russell, 266 NY 147, 153 [1934]), and isolated errors in the chargegenerally do not mandate reversal (seePeople v Umali, 10 NY3d 417, 426-427 [2008], cert denied 556 US 1110 [2009]; People vDrake, 7 NY3d 28, 32 [2006]). A significant part of defendant's defense to the topcharge in the indictment was premised upon his argument that intoxication should not be used aspart of two separate elements in the same crime, i.e., for the intoxication element of vehicularmanslaughter and also to show reckless driving. Defense counsel made such an argument beforethe jury in summation. When the prosecutor made a statement in summation indicating that thejury should consider intoxication as part of reckless driving, defense counsel objected. CountyCourt did not rule on the objection, but stated that it would "explain it all to the jury."
At the close of summations, defense counsel moved for a mistrial based upon theprosecutor's statement. Considerable discussions ensued both about the motion and then aboutCounty Court's charge to the jury. The court denied the mistrial motion and appeared to indicatethat it agreed with defense counsel that, in the context of aggravated vehicular homicide, thePeople had to show reckless driving[FN3] independent of intoxication. Nevertheless, the court refused to give a clarifying instruction asrequested by defendant.
Three of the four questions from the jury during its deliberation reflected that it wasstruggling with the proper standard for reckless driving. First, the jury requested that the chargeon aggravated vehicular manslaughter be reread and asked whether recklessness had the samedefinition in all charges. Next, it requested a rereading of the reckless driving charge with awritten, underlined definition.[FN4]Finally, the jury asked, "Is reckless driving only refe[r]ring to the physical operation of thevehicle? ie, being driven erratically."
Defendant argues and the concurring opinion agrees that the jury should have been instructedthat it could not consider evidence of defendant's intoxication to prove the reckless drivingelement of aggravated vehicular manslaughter. In that regard, there is no doubt that the juryshould have been instructed that intoxication, absent more, does not establish reckless driving.However, it does not follow that evidence of an individual's intoxication and how that conditionmay have affected his or her ability to perceive and react to risks commonly [*5]encountered while operating a motor vehicle on a public highway isnot relevant or admissible to establish that the motor vehicle was being operated recklessly whenit was involved in a fatal accident (see generally People v Bohacek, 95 AD3d at 1594; People v Heidgen, 87 AD3d 1016,1024 [2011], lv granted 17 NY3d 957 [2011]; People v Ladd, 224 AD2d at882).[FN5]
Since the jury was not properly instructed as to what was required to find that defendant wasrecklessly driving his automobile when involved in this fatal accident, his conviction foraggravated vehicular homicide must be reversed and the matter remitted for a new trial on thatcharge[FN6](see People v Medina, 18 NY3d at 104).
Spain, Malone Jr. and McCarthy, JJ., concur.
Lahtinen, J.P. (concurring). I agree with the majority's conclusion that a new trial is necessaryon count 1, aggravated vehicular homicide. Respectfully, I write separately because I would holdthat a jury should be instructed not to consider a defendant's intoxicated condition[FN1]when weighing the [*6]reckless driving element of the crime ofaggravated vehicular homicide. Stated another way, when reckless driving is weighed as anelement of aggravated vehicular homicide, the jury's focus for that element should be limited tothe driver's manner of operation rather than the driver's condition. The driver'scondition—intoxication—is already an essential part of other elements of the crimeof aggravated vehicular homicide and should not be used twice to establish separate elements ofa single crime.
Permitting one factor (such as intoxication) to be considered twice in enhancing a singlecrime is not favored (see generally People v Phelps, 211 Ill 2d 1, 12-13, 809 NE2d 1214,1221 [2004]) and should not occur absent clear and specific legislative direction (cf. Simpsonv United States, 435 US 6, 14-15 [1978]). Permitting intoxication to be used twice will likelyhave the practical effect of vehicular manslaughter in the first degree (a class C felony) routinelybecoming the higher offense of aggravated vehicular homicide (a class B felony) without anymeaningful additional proof required to raise the level of criminality. Such a result is contrary tothe graduated culpability reflected by different felony levels ascribed by the Legislature to thesecrimes (cf. People v Suarez, 6NY3d 202, 206-207 [2005]).
The statutory definition of reckless driving in Vehicle and Traffic Law § 1212proscribes a specifically described manner of operation of a vehicle.[FN2]Where, as here, that manner of operation serves to elevate to class B felony status a crime that isalready a class C felony as a result of intoxicated driving causing death (see Penal Law§ 125.13), the jury should be instructed to focus solely on the proscribed manner ofoperation as statutorily defined in Vehicle and Traffic Law § 1212 when considering thereckless driving element.
There may be cases where reckless driving is so apparent that failure to properly instruct thejury regarding such element would be harmless error. For example, driving a vehicle at a highrate of speed in the wrong direction on an expressway or driving at a high rate of speed through aseries of city red lights are acts that squarely fall within the definition of reckless driving. In thecurrent case, the issue was not as clear as these examples. Defendant premised much of hisdefense on challenging the reckless driving element of count 1 and specifically requested that thejury be instructed not to weigh his intoxication when considering such element. This tragic caseis close on the element of reckless driving and, despite specific requests by defendant, inadequateinstructions were given to the jury. Accordingly, I agree with the majority that a new trial must beconducted on this count of the indictment.[*7]
Ordered that the judgment is modified, on the law, byreversing defendant's conviction of aggravated vehicular homicide under count 1 of theindictment and vacating the sentence imposed thereon; matter remitted to the County Court ofWarren County for a new trial on said count; and, as so modified, affirmed.
Footnote 1: Aggravated vehicular homicidecan also generally be viewed as the crime of vehicular manslaughter in the first degree(see Penal Law § 125.13) plus reckless driving.
Footnote 2: However, in the context of thepertinent section of the Penal Law, it serves to elevate a potential C felony to a B felony.
Footnote 3: There was also discussionregarding the fact that reckless driving should not be confused with acting recklessly, which is astatutorily defined element (see Penal Law § 15.05 [3]) of manslaughter in thesecond degree (see Penal Law § 125.12 [1]), a crime with which defendant wasalso charged.
Footnote 4: The People objected to givingthe jury a written definition, and County Court thus only reread the charge.
Footnote 5: The concurring opinionregarding the admissibility of this evidence is based in large measure on the concern that"[p]ermitting intoxication to be used twice will likely have the practical effect of vehicularmanslaughter in the first degree . . . routinely becoming the higher offense ofaggravated vehicular homicide." However, an appropriate charge to the jury—one thatinstructs the jury that intoxication by itself does not constitute reckless driving but, at the sametime, allows such evidence to be considered in making that crucial determination—in ourview, adequately addresses that concern.
Footnote 6: Vehicular manslaughter in thefirst degree (count 2), reckless driving (count 5) and driving while intoxicated (counts 6 and 7)are lesser included offenses of aggravated vehicular homicide (see Penal Law§§ 125.12, 125.13 [4]; 125.14; Vehicle and Traffic Law § 1212; People v Bain, 85 AD3d 1193,1194 [2011], lv denied 17 NY3d 902 [2011]; People v Osborne, 60 AD3d 1310, 1310-1311 [2009], lvdenied 12 NY3d 919 [2009]) and, therefore, should have been submitted to the jury asalternative counts or, upon defendant's conviction of the greater offense, should have beendismissed (see CPL 300.40 [3] [b]). However, defendant has specified that on this appealhe is only challenging the conviction for aggravated vehicular homicide and not the otherconvictions. Accordingly, in the event that the retrial results in a conviction on the aggravatedvehicular homicide charge, the lesser included charges must be dismissed.
Footnote 1: The current case involvesintoxication and I have limited my discussion to such condition. However, the same analysiswould apply if the underlying condition consisted of alcohol and drugs, or drugs alone(see Penal Law § 125.12 [1]).
Footnote 2: As noted by the majority, caremust be taken not to confuse "recklessly" as defined for purposes of the Penal Law (seePenal Law § 15.05 [3]) with the separately defined misdemeanor of reckless drivingcontained in Vehicle and Traffic Law § 1212, which carries a maximum punishment of a$300 fine and 30 days in jail for a first offense (see Vehicle and Traffic Law §1801).