| People v Ballenger |
| 2013 NY Slip Op 03877 [106 AD3d 1375] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJemark D. Ballenger, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered July 18, 2011, upon a verdict convicting defendant of the crime ofcriminally negligent homicide (two counts).
Defendant was the front-seat passenger in a vehicle pursuing another vehicle at highspeed and close range on a four-lane, limited access highway. When the two vehiclesbegan to travel alongside each other, defendant grabbed the steering wheel and jerked ittoward the other vehicle. The other vehicle escaped unscathed, but defendant's vehiclestruck the guardrail, causing a one-car accident that obstructed one of the two westboundlanes. As oncoming westbound traffic negotiated the accident scene, it slowed andbacked up. Approximately 30 minutes later and half a mile behind the scene of theoriginal accident, a second and third accident occurred. One of the vehicles involved inthe third accident—a five-car chain-reaction collision—caught fire and thegas tank exploded, resulting in the deaths of the two occupants. Based upon these deaths,defendant was charged with reckless endangerment in the first degree and two counts ofcriminally negligent homicide. A jury acquitted defendant of reckless endangerment, butconvicted him of the criminally negligent homicide counts. County Court then sentenceddefendant as a second felony offender to two concurrent prison sentences of 2 to 4 years,and he now appeals.[*2]
We are persuaded by defendant's argument that,even if his conduct rose to the level of criminal negligence (see Penal Law§ 15.05 [4]), it cannot be considered to be a sufficiently direct cause of the victims'deaths so as to hold him criminally responsible (see Penal Law §125.10).[FN*]We reach this conclusion after a careful review of the proof of the element of causation,beginning with the initial accident. The evidence at trial establishes that defendant causedthe vehicle in which he was a passenger to crash into the guardrail of a bridge carryingthe two westbound lanes of the highway over a river. The disabled vehicle then blockedthe right-hand lane, reducing traffic in the area of the accident to one lane. Policeresponded to the scene, set up flares and called for a tow truck and for the Department ofTransportation (hereinafter DOT) to respond. Some 30 minutes after the originalaccident, while still waiting for a tow truck, traffic had backed up almost half a mile tothe east when the second accident occurred. The driver of a minivan approached thebacked-up traffic at a high rate of speed while distractedly tuning his radio. He slammedon his brakes, his minivan skidded out of control and hit a guardrail, and it eventuallycame to rest on the right-hand shoulder of the highway facing in the wrong direction. ADOT truck responding to the initial accident came upon the minivan, pulled over andactivated its lights to warn motorists of the second accident. Within minutes of thesecond accident and approximately 20 to 30 feet away, the third accident occurred whenthe driver of the first of the five vehicles involved changed lanes in an attempt to avoidthe DOT truck, rear-ending the second vehicle in this chain-reaction collision. The firstvehicle was then rear-ended by a third vehicle, pushing the second vehicle forward into afourth vehicle which, in turn, was pushed forward into a fifth vehicle. The force of thesecollisions caused the gas tank in the second vehicle to rupture and it then burst intoflames, killing the driver and her daughter.
In determining whether defendant's conduct in causing the first accident can beconsidered to be a cause of the victims' deaths so as to impose criminal liability, weemploy a two-step analysis. The first step is to examine whether defendant's conduct setin motion the events that led to the victims' deaths (see People v DaCosta, 6 NY3d 181, 185 [2006]; Peoplev Matos, 83 NY2d 509, 511 [1994]). We agree with County Court's observation thatthis "but for" determination is easily reached here. Absent the initial accident caused bydefendant, traffic would not have slowed down and there would have been no occasionfor the subsequent accidents.
The second step of our analysis is more difficult. It requires a finding that defendant'sconduct was a " 'sufficiently direct cause of the ensuing death[s]' " (People vStewart, 40 NY2d 692, 697 [1976] [emphasis omitted], quoting People vKibbe, 35 NY2d 407, 413 [1974]). "[A]n act 'qualifies as a sufficiently direct causewhen the ultimate harm should have been reasonably foreseen' " (People vDaCosta, 6 NY3d at 184, quoting People v Matos, 83 NY2d at 511). Aconnection between the conduct and the death that is obscure or "merely probable" willnot suffice (People v Phippen, 232 AD2d 790, 791 [1996] [internal quotationmarks and citations omitted]). On the other hand, [*3]wenote that the mere lapse of time will not necessarily serve to break the chain of causation(see e.g. Matter of Anthony M., 63 NY2d 270, 275-276 [1984]; People vKibbe, 35 NY2d at 410-411). Nor does a defendant's conduct need to be the solecause of death in order for criminal responsibility to attach (see People vDaCosta, 6 NY3d at 184; People v Lapan, 289 AD2d 698, 700 [2001], lvdenied 97 NY2d 756 [2002]).
The case of People v Kibbe (supra) is instructive. There, thedefendants left the victim stranded at the side of a darkened, isolated roadway in thefreezing cold without his glasses while he was lightly clothed and visibly intoxicated(id. at 410). Approximately half an hour later, the victim was sitting in the middleof the roadway where he was struck and killed by an oncoming vehicle (id. at411). In Kibbe, the evidence of causation was found to be sufficiently directbecause the victim's death was a directly foreseeable consequence of the defendants' actof abandoning him on the side of the road (id. at 413; see People vMatos, 83 NY2d at 511). Simply put, the defendants' conduct directly involved thevictim. The same can be said for cases where a robbery or burglary of a victim leads to aheart attack that causes the victim's death (see e.g. Matter of Anthony M., 63NY2d at 276-279), or where a police officer is killed while chasing a fleeing suspect(see e.g. People v DaCosta, 6 NY3d at 184; People v Matos, 83 NY2d at511).
Here, the People failed to present evidence directly linking defendant's act to thevictims' deaths (see People v Stewart, 40 NY2d at 698; People vPhippen, 232 AD2d at 791). Although the accident reconstructionist called as awitness by the People provided an opinion as to the sequence of the five-car collision, hecould not estimate the speed of the vehicles involved, he did not attempt to reconstructthe initial accident and he offered no opinion to support the conclusion that the third andfatal accident was a foreseeable result of the initial accident (compare Matter ofAnthony M., 63 NY2d at 281; People v Lapan, 289 AD2d at 700-701).
Significantly, were we to consider the circumstances here in a civil tort law context,where the quantum of proof required to establish causation is much less (see People vWarner-Lambert Co., 51 NY2d 295, 306 [1980], cert denied 450 US 1031[1981]; People v Kibbe, 35 NY2d at 412), defendant's conduct would not befound to be the cause of the victims' deaths. In civil cases involving chain reactions, iftraffic is able to avoid a negligently stopped vehicle but subsequent accidents occur, thenegligence of the initial vehicle generally will not be considered the proximate cause ofthe subsequent accidents (seee.g. Daley v Pelzer, 100 AD3d 949, 950-951 [2012]; Ali v Daily Pita Bakeries, Inc.,35 AD3d 330, 331 [2006]; Good v Atkins, 17 AD3d 315, 316 [2005]). Here, there isample evidence that traffic was slowed and backed up for approximately 30 minutes afterthe initial accident, yet vehicles were able to negotiate the accident scene and avoid thedisabled vehicle in which defendant had been a passenger. Furthermore, motorists hadbeen warned about the initial accident by law enforcement's placement of flares on theroad and there was evidence that the negligence of the drivers involved in the second andthird accidents were intervening causes of the events leading to the deaths of the victims.
In short, the evidence here did not establish that defendant's conduct directlyinvolved the two victims so as to impose criminal liability. Given the lack of evidence tosupport a finding that defendant's conduct was a sufficiently direct cause of the victims'deaths, the charges must be dismissed (see People v Bleakley, 69 NY2d 490, 495[1987]).
Stein, Spain and McCarthy, JJ., concur. Ordered that the judgment is reversed, on thefacts, and indictment dismissed.
Footnote *: Defendant's challengeto the legal sufficiency of the evidence is unpreserved (see People v Lane, 7 NY3d888, 889 [2006]), however, we necessarily review the sufficiency of the evidence oneach element in our review of the weight of the evidence (see People v McCray, 102AD3d 1000, 1004 n 2 [2013]; People v Newkirk, 75 AD3d 853, 855 [2010], lvdenied 16 NY3d 834 [2011]).