| People v Reichel |
| 2013 NY Slip Op 07080 [110 AD3d 1356] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Timothy S. Reichel, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedDecember 16, 2011 in Albany County, upon a verdict convicting defendant of the crimeof manslaughter in the second degree.
At some point after 8:00 p.m. on October 29, 2010, defendant, who had beendrinking since approximately 11:30 a.m. that day, and his pregnant girlfriend (hereinafterthe victim) left their residence in the victim's 2005 Mitsubishi Gallant to go to the store.As the vehicle proceeded northbound on Lishakill Road in the Town of Colonie, AlbanyCounty, it crossed over the fog line on the east shoulder, prompting the driver toovercorrect. The vehicle then crossed the center line of the road and struck a speed limitsign on the opposite shoulder, at which point the right rear tire went flat, causing thevehicle to roll onto its roof. The vehicle continued to travel—inverted—in agenerally northerly direction across the lawn of a residence until it struck—andsheared off—a sizeable tree. Upon impact with this tree, which occurred justbehind the left front tire of the vehicle, the engine compartment of the Mitsubishiseparated from the rest of the car. The passenger compartment—with most of theweight now concentrated in the rear of the vehicle—continued north, spinningcounterclockwise and righting itself before finally coming to rest upon its impact with asecond tree. During the course of these events, both defendant and thevictim—neither of whom were wearing seat belts—were ejected from the[*2]vehicle through either the driver's-side window or thedriver's side of the windshield,[FN1] as a result of which defendant sustained serious injuries and the victim died. Based uponyaw marks observed on the pavement at the scene, the actual speed of the Mitsubishiprior to impact was calculated to be 76.92 miles per hour.[FN2] A subsequent examination of the vehicle revealed that the driver did not apply thebrakes prior to the crash, and road conditions, weather conditions and mechanical issueswere ruled out as contributing factors to the accident.
The initial police investigation concluded that defendant was driving on the night inquestion and, as a result, defendant was indicted and charged in a 10-count indictmentwith, insofar as is relevant here, aggravated vehicular homicide, manslaughter in thesecond degree, driving while intoxicated per se and driving while intoxicated.[FN3] Following a lengthy jury trial, defendant was convicted of manslaughter in the seconddegree and acquitted of the remaining counts. Defendant thereafter was sentenced as asecond felony offender to a prison term of 7½ to 15 years. Defendant's subsequentmotion to set aside the verdict was denied, prompting this appeal.[FN4]
We affirm. Initially, we reject defendant's assertion that Supreme Court erred infailing to discharge a sworn juror. "If at any time after the trial jury has been sworn andbefore the rendition of its verdict, . . . the court finds, from facts unknownat the time of the selection of the jury, that a juror is grossly unqualified to serve in thecase or has engaged in misconduct of a substantial nature, . . . the courtmust discharge such juror" (CPL 270.35 [1]; see People v Buford, 69 NY2d 290,298 [1987]; People vLapage, 57 AD3d 1233, 1235 [2008]). A juror will be deemed to be grosslyunqualified to serve only when, after "conduct[ing] a probing, tactful inquiry into thespecific circumstances" (Peoplev Cecunjanin, 67 AD3d 1072, 1076 [2009], mod on other grounds 16NY3d 488 [2011] [internal quotation marks and citation omitted]),[FN5]"it becomes obvious that a particular juror possesses a state of mind which would preventthe rendering of an impartial verdict" (People v Buford, 69 NY2d at 298 [internalquotation marks and citation omitted]; see People v Brock, 107 AD3d 1025, 1028 [2013], lvdenied 21 NY3d 1072[*3] [2013]; People v Wright, 13 AD3d736, 739 [2004], lv denied 4 NY3d 837 [2005]). We conclude—basedupon our review of the record—that no such showing was made here.
Trial counsel initially asserted that juror No. 2 was glaring at her, prompting aconcern that this juror already had formed an opinion as to defendant's guilt. SupremeCourt questioned the first six sworn jurors, in response to which juror No. 2 indicatedthat he could follow the court's instructions regarding, among other things, thepresumption of innocence and keeping an open mind. Following this inquiry, defensecounsel voiced no objection to juror No. 2's continued service and, in any event, "asworn juror should not be discharged merely because [he or] she is irritated with one ofthe attorneys" (People v Buford, 69 NY2d at 298-299).
The following day, Supreme Court received a note from juror No. 2 indicating thathe "may have seen someone [he] went to school with in the spectator area that may be arelative (possibly the father) of the victim." In response to Supreme Court's inquiry, jurorNo. 2 indicated that he had not seen the individual in question since he graduated fromhigh school more than 30 years ago and reiterated that he could "still be fair." Althoughdefense counsel asked that juror No. 2 be excused, "the juror's fleeting contact with [thisindividual] years earlier did not constitute such a close relationship of a business orpersonal nature as to render the juror grossly unqualified to continue serving in the case"(People v Henderson, 74AD3d 1567, 1571 [2010], mod 77 AD3d 1168 [2010] [internal quotationmarks and citation omitted]; see People v Wright, 13 AD3d at 739; People vCook, 275 AD2d 1020, 1021 [2000], lv denied 95 NY2d 933 [2000]).
Finally, although juror No. 2 acted unwisely in beginning to read one of two articlesappearing in a local newspaper,[FN6]he nonetheless assured Supreme Court that he had not formed any opinions about thecase and that he could remain impartial. Under these circumstances, we do not find thatjuror No. 2 was grossly unqualified to serve or otherwise engaged in substantialmisconduct (see People vJimenez, 101 AD3d 513, 514 [2012], lv denied 20 NY3d 1100 [2013];People v Mason, 299 AD2d 724, 724-725 [2002], lv denied 100 NY2d564 [2003]).
Nor are we persuaded that Supreme Court abused its discretion in refusing to allowdefendant to introduce evidence of the victim's prior traffic infractions and accidents,which, defendant contends, would have provided the jury with an alternative explanationfor the accident, to wit, that it was the victim, not defendant, who was driving theMitsubishi at the time of the accident. The flaw in defendant's argument on this point isthat the victim's allegedly poor driving history simply is not probative of whether she wasa passenger in or the driver of the Mitsubishi on the night in question (see People vCarkner, 213 AD2d 735, 739 [1995], lv denied 85 NY2d 970 [1995]; cf. People v Scott, 93 AD3d1193, 1195 [2012], lv denied 19 NY3d 967 [2012]; People v Clarkson, 78 AD3d1573, 1573-1574 [2010], lv denied 16 NY3d 829 [2011]), no more so thandefendant's driving history—which included two prior convictions for driving[*4]while intoxicated and six prior convictions foraggravated unlicensed operation of a motor vehicle—would be probative ofwhether he was a passenger in or the operator of the vehicle.
Defendant next asserts that the verdict is not supported by legally sufficient evidenceand, further, is against the weight of the evidence—specifically, that there isinsufficient evidence to place him behind the wheel of the car at the time of theaccident[FN7]and/or demonstrate that he recklessly caused the victim's death (see Penal Law§ 125.15 [1]). Neither of these arguments has merit.
The record reflects that on the morning of the accident (Friday, Oct. 29, 2010),defendant showed up for work driving the victim's car—as he had done everyother day that week. Defendant and his coworker, Harley Cioccke, both of whom workedfor a local roofing company, clocked out early that day due to rain and drove—inthe victim's car—to the Bayou CafÉ in Schenectady County to have "a fewbeers." As defendant and Cioccke arrived before the establishment opened, they enteredthrough the kitchen and, over the course of the next 90 minutes, each consumed severalbottles of beer. The duo then left the bar and proceeded to Cioccke's house beforereturning to the employer's office to pick up their paychecks. After cashing theirrespective checks and purchasing a 12-pack of beer at a local market, defendant andCioccke made their way to the residence that defendant shared with the victim, who wasthere caring for her infant daughter. Throughout this time, defendant continued to drivethe victim's car.
After consuming an additional quantity of beer, defendant and Cioccke climbed backinto the victim's Mitsubishi and, with defendant again driving, proceeded to a liquorstore, where defendant purchased a bottle of vodka. Upon returning to defendant'sresidence, Cioccke began to drink the remaining bottles of beer, and defendant starteddrinking vodka with cranberry juice. Cioccke testified that, as the evening progressed,defendant indicated that "[h]e wanted to go get more alcohol." Cioccke refused to get inthe car with defendant, who by then was "staggering" and "slurring his words," because"[defendant] was drunk, drunk, drunk, drunk." When defendant, who had the keys to theMitsubishi, persisted, the victim, who wanted to go to the store to purchase some juice,indicated that "she wanted to drive." Defendant, however, insisted that "he was driving."Cioccke testified that, as defendant and the victim left the residence, he again heard thevictim ask defendant "for the keys" and to "let [her] drive" and that defendant againreplied, "[N]o." Cioccke did not, however, see either defendant or the victim enter thevehicle, nor did he see who was driving when the vehicle left the premises.
Similar testimony was adduced from Melissa Rowe, who was a friend of the victim.Rowe testified that she arrived at defendant and the victim's residence at approximately6:30 p.m., at which time defendant and Cioccke were "[i]n the kitchen makingdrinks"—specifically, vodka with orange juice and cranberry juice. According toRowe, defendant "couldn't even stand" and "was falling" at this point. During the timethat she was at the residence, Rowe had one drink and saw defendant have "[f]ive or six"drinks. As the evening progressed, Rowe and [*5]thevictim decided to go to the store to purchase some juice for the victim, who—asnoted previously—was pregnant.[FN8]When the victim indicated that defendant would be accompanying them, Rowe backedout and offered to remain at the house with the victim's daughter. Shortly beforedefendant and the victim left the residence, Rowe saw defendant, whom she described as"stumbling" and "drunk," holding and "[t]wirling" the keys to the Mitsubishi in hishand.[FN9]At approximately 9:00 p.m., a 911 call was placed reporting the crash. More than onefirst responder detected the odor of alcohol on defendant's breath, and defendant's bloodalcohol content approximately two hours after the accident was 0.15%.
As the crash was unwitnessed, and because both defendant and the victim wereejected from the vehicle, the identity of the driver hinged—in largemeasure—upon the physical evidence recovered at the scene and the injuriessustained by defendant and the victim, as well as the testimony adduced from therespective experts.[FN10]In this regard, the record reflects that, upon being ejected from the vehicle, defendantcame to rest in the front lawn of the residence at 130 Lishakill Road—lying justbeyond, and having followed the same general trajectory as, the vehicle's windshield,engine compartment, steering wheel and bumper—while the victim was foundlying in the middle of Lishakill Road (generally southeast of defendant's location). Asnoted previously, the keys to the vehicle, which broke off in the ignition switch, werefound in the roadway underneath the victim. Photographic evidence and testimony alsoestablished that the passenger compartment on the driver's side of the vehicle sustained"heavy crush damage or intrusion"—as a result of which the floorboard on thedriver's side was "almost completely crushed into the center console" of the vehicle. Incontrast, although there was "some intrusion" into the front passenger-side compartment,"[t]here was minimal damage . . . , [and] the actual occupant area[remained] intact." Significantly, the testimony offered by the first responders and thepathologist demonstrated that although defendant sustained "an obvious fracture" to hislower right leg—an injury entirely consistent with the significant passenger spaceintrusion present on the driver's side of the vehicle—the victim suffered onlysuperficial abrasions to one of her knees. Finally, the record reveals that, whenparamedics arrived at the scene, the victim was found wearing a small pair of whitesneakers, while defendant was found without shoes. When the Mitsubishi was examinedfollowing the crash, a large pair of grey slippers was recovered from the driver's side ofthe vehicle—wedged in the remnants of the driver's-side floorboard in such afashion that the slippers had to be pried from the car. Subsequent analysis of a bloodstain found on one of the slippers concluded that defendant was "the major contributor"to the DNA found thereon.[*6]
Based upon the trajectory of both the steeringwheel and defendant's body, as well as the physical injuries that defendant sustained andthe evidence recovered from inside the car, the People's expert, Jason DePaulo,concluded that defendant was driving at the time of the crash. Specifically, DePauloopined that defendant was ejected when the Mitsubishi struck and sheared off the firsttree—at which point the vehicle lost most of its speed; the victim, in turn, wasejected through the driver's-side window at some point after the vehicle began itscounterclockwise rotation but before coming to rest upon its impact with the second tree,at which point the nose of the vehicle was pointing south and the driver's side of thevehicle was closest to Lishakill Road.[FN11]DePaulo's conclusions in this regard are based, in part, upon the fact that defendanttraveled an overall greater distance than the victim following the crash. Notably,defendant was found on the lawn of the residence approximately 75 feet from the pointof the initial impact and approximately 47 feet northwest of where the passengercompartment of the vehicle ultimately came to rest, while the victim was found in themiddle of the road approximately 36 feet east of the passenger compartment of thevehicle.
Although the evidence placing defendant in the driver's seat on the night in questionindeed was circumstantial, "[e]ven in circumstantial evidence cases, the standard forappellate review of legal sufficiency issues is whether any valid line of reasoning andpermissible inferences could lead a rational person to the conclusion reached by the factfinder on the basis of the evidence at trial, viewed in the light most favorable to thePeople" (People v Fomby,101 AD3d 1355, 1355 [2012] [internal quotation marks and citations omitted]). Inour view, the foregoing evidence was more than sufficient to permit the jury to concludethat defendant was driving on the night of the accident. Additionally, although a differentverdict would not have been unreasonable, we cannot say that the jury failed to accordthe evidence the proper weight with respect to the issue of operation.
We reach a similar conclusion as to the issue of whether defendant recklessly causedthe victim's death. Without belaboring the point, the record reflects that, following a dayof heavy drinking,[FN12]defendant climbed behind the wheel of a vehicle and, with his pregnant girlfriend in thepassenger seat, drove 76 miles per hour through a residential neighborhood having aposted speed limit of 30 miles per hour, at night, lost control of the vehicle, left thetraveled portion of the road and—without any evidence of braking—strucka tree with sufficient force to shear the tree from its trunk and sever the enginecompartment of the Mitsubishi from the remainder of the vehicle. "Such proof permitsthe inference that defendant recklessly caused the death of another, either by consciouslydisregarding the substantial and unjustifiable risk that such result would occur or bybeing unaware of that risk solely by reason of [his] voluntary intoxication" (People v[*7]DeLong, 269 AD2d 824, 825 [2000], lvdenied 94 NY2d 946 [2000] [citations omitted]). Under these circumstances, wehave no difficulty in finding that the jury's verdict convicting defendant of manslaughterin the second degree is supported by legally sufficient evidence and is in accord with theweight of the evidence (seePeople v Asaro, 94 AD3d 773, 773 [2012], affd — NY3d—, —, 2013 NY Slip Op 06805, *5-6 [2013]; People v Wolz, 300AD2d 606, 606 [2002], lv denied 1 NY3d 636 [2004]; People v Hart,266 AD2d 698, 700-701 [1999], lv denied 94 NY2d 880 [2000]; cf. People v Peryea, 68 AD3d1144, 1146-1147 [2009], lv denied 14 NY3d 804 [2010]; People vDeLong, 269 AD2d at 824-825; People v Grenier, 250 AD2d 874, 876-877[1998], lv denied 92 NY2d 898 [1998]; People v Kenny, 175 AD2d 404,406 [1991], lv denied 78 NY2d 1012 [1991]; People v Verdile, 119AD2d 891, 892-893 [1986]).[FN13]
As for defendant's claim of prosecutorial misconduct, we note that defendant failedto object to the allegedly improper comments made by the prosecutor during the People'ssummation and, therefore, this issue is not preserved for our review (see People v Mosher, 94 AD3d1231, 1233 [2012], lv denied 19 NY3d 999 [2012]; People v Ciccone, 90 AD3d1141, 1145 [2011], lv denied 19 NY3d 863 [2012]). In any event, thechallenged conduct "was not so egregious or pervasive as to deprive defendant of a fairtrial" (People v Muniz, 93AD3d 871, 876 [2012], lv denied 19 NY3d 965 [2012]; see People v McCall, 75 AD3d999, 1002 [2010], lv denied 15 NY3d 894 [2010]).
We reach a similar conclusion regarding defendant's challenge to the supplementaljury instructions given by Supreme Court. After the jury retired, it requested a read backof the charge with respect to the first (aggravated vehicular homicide) and fourth(manslaughter in the second degree) counts of the indictment. Supreme Court compliedwith the request, and neither the People nor defendant voiced any objection with respectto the court's instructions. Thereafter, the jury requested a read back of "all charges. . . with specific clarification on the first and fourth" counts. Prior torereading the applicable portions of its charge, Supreme Court—in an effort toprovide the requested clarification—stated, "[W]hen you listen to the elements,you'll hear that[ ] aggravated vehicular homicide in the first degree[ ] has four elements,and the crime of reckless manslaughter in the second degree[ ] has two elements. So, youknow that's the distinction. They're different from each other, that's why both of them arebeing submitted . . . and you are being asked to render verdicts on both."Although defendant objected to this "additional verbiage," he raised no other issue withrespect to Supreme Court's response to the jury's request. Hence, defendant's presentclaim—that the supplemental instructions were either misleading orincomplete—has not been preserved for our review (see People v Williams, 28AD3d 1005, 1009 [2006], lv denied 7 NY3d 819 [2006]). Nevertheless, "weare satisfied that the court appropriately interpreted the inquiry posed in this case andthen meaningfully responded to it" (People v Buckery, 20 AD3d 821, 823 [2005], lvdenied 5 NY3d 826 [2005] [citations [*8]omitted]).
Finally, we reject defendant's assertion that the verdict is repugnant. "[A] verdict asto a particular count shall be set aside [as repugnant] only when it is inherentlyinconsistent when viewed in light of the elements of each crime as charged to the jury"(People v Tucker, 55 NY2d 1, 4 [1981]; accord People v Muhammad, 17 NY3d 532, 539 [2011];see People v Brown, 102AD3d 704, 704 [2013], lv denied 21 NY3d 1014 [2013]; People v Strickland, 78 AD3d1210, 1211 [2010]). Notably, we must "review the elements of the offenses ascharged to the jury without regard to the proof that was actually presented at trial" (People v Abraham, 94 AD3d1332, 1333 [2012], lv granted 19 NY3d 1100 [2012] [internal quotationmarks and citation omitted]). Thus, "[i]f there is a possible theory under which a splitverdict could be legally permissible, it cannot be repugnant, regardless of whether thattheory has evidentiary support . . . . In this context, the apparently illogicalnature of the verdict—as opposed to its impossibility—is viewed as amistake, compromise or the exercise of mercy by the jury, none of which undermine[s] averdict as a matter of law" (People v Muhammad, 17 NY3d at 540 [citationsomitted]). In other words, although the jury's verdict may not logically make sense, allthat is required is that the verdict is legally permissible.
Here, the jury acquitted defendant of aggravated vehicular homicide (seePenal Law § 125.14 [3]), driving while intoxicated per se (see Vehicle andTraffic Law § 1192 [2]) and driving while intoxicated (see Vehicle andTraffic Law § 1192 [3])—all of which require proof of intoxication. Proofof intoxication, however, is not a prerequisite to a conviction of manslaughter in thesecond degree (see People v Donnelly, 103 AD2d 941, 942 [1984]); rather, allthat is required is proof that the defendant recklessly caused the death of another(see Penal Law § 125.15 [1]). As the cited offenses are neither identicalnor have the essential element of intoxication in common (see People v Schaffer,80 AD2d 865, 866 [1981]), the verdict—although arguably illogical—is notrepugnant under People v Tucker (supra) and People vMuhammad (supra) (see People v Asaro, 94 AD3d at 773;People v Schaffer, 80 AD2d at 866).
Defendant's remaining contentions, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.
Lahtinen, J.P., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The People's anddefendant's respective experts agreed that both defendant and the victim were ejectedthrough the driver's side of the car but differed as to when those ejections occurred.
Footnote 2: The People's expertdefined a yaw mark as "a mark left by a tire that's both rolling and sliding," which occurs"when the speed of a vehicle exceeds the tires['] ability to maintain grip with the roadsurface."
Footnote 3: Only these four countswere submitted to the jury.
Footnote 4: Defendant's motion fora stay and bail pending appeal was denied by a Justice of this Court.
Footnote 5: To the extent thatdefendant now suggests that Supreme Court's inquiry in this regard was insufficient, thisargument is unpreserved for our review (see People v Grimm, 107 AD3d 1040, 1041 [2013], lvdenied 21 NY3d 1042 [2013]) and, in any event, is belied by the record.
Footnote 6: The first article, whichjuror No. 2 admittedly started to read, was captioned, "Jurors need to avoid case on theInternet" and generally discussed judicial admonitions to refrain from readingnewspapers or the Internet while serving on a jury. A related article published the sameday, which juror No. 2 denied reading, was captioned, "Who was driving in fatal crash?"and directly addressed defendant's trial.
Footnote 7: In this regard, defendantrelies upon the fact that (1) the keys to the vehicle were found beneath the victim's body,(2) only defendant's DNA was recovered from the passenger-side air bag, and (3) despitedefendant's leg fracture, no trace of blood was found on the driver's-side carpeting orfloor mat.
Footnote 8: Neither Cioccke norRowe saw the victim drink any alcoholic beverages that night, and the pathologist whoperformed the victim's autopsy testified that her toxicology screen was negative foralcohol or drugs.
Footnote 9: At this point, accordingto Rowe, "less than half" of the bottle of vodka remained.
Footnote 10: Such proof, ofcourse, was in addition to Rowe's testimony that defendant was the last person seenholding the keys to the Mitsubishi, as well as Cioccke's testimony that defendant, whohad been driving the victim's car all week, insisted upon driving that night.
Footnote 11: Defendant's expert,who did not offer an opinion as to the identity of the driver, testified that defendant andthe victim both were ejected upon the vehicle's impact with the first tree.
Footnote 12: The fact that thejury opted to acquit defendant of driving while intoxicated in no way undermines the factthat defendant had been drinking since approximately 11:30 a.m. on the day of theaccident, nor does it negate the fact that this was an alcohol-related crash (see Peoplev Asaro, — NY3d —, —, 2013 NY Slip Op 06805, *5 [2013]).
Footnote 13: Although certain ofthe cited authorities indeed involve factual situations where the defendant was convictedof both manslaughter in the second degree and an alcohol-related offense, the foregoingcases nonetheless stand for the proposition that excessive speed coupled with alcoholconsumption, failure to brake or take other corrective action and leaving one's lane oftravel—all of which undeniably occurred here—are sufficient to support afinding of recklessness within the meaning of Penal Law § 15.05 (3).