| People v Davis |
| 2013 NY Slip Op 08651 [112 AD3d 959] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jonathan Davis, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jason R. Richards and JosephMogelnicki of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered January 5, 2012, convicting him of vehicular manslaughter in thesecond degree, criminally negligent homicide, reckless endangerment in the seconddegree, reckless driving, driving while intoxicated in violation of Vehicle and TrafficLaw § 1192 (3), and driving while intoxicated in violation of Vehicle and TrafficLaw § 1192 (2), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofdriving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3) anddriving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2), andthe sentences imposed thereon, and dismissing those counts of the indictment; as somodified, the judgment is affirmed.
On September 20, 2009, the defendant entered an intersection at a high rate of speed,and struck a vehicle driven by the victim, killing him. Evidence was adduced at the trialthat the defendant was intoxicated at the time. The absence of tire marks indicated thatthe defendant had not tried to swerve prior to the accident. In addition, a streetlight at theintersection was not working, and a factor in the victim's death was that he was notwearing a seat belt and, therefore, was ejected through the driver's side window and door.
The defendant was indicted for manslaughter in the second degree, vehicularmanslaughter in the second degree, reckless endangerment in the second degree, drivingwhile intoxicated in violation of Vehicle and Traffic Law § 1192 (3), drivingwhile intoxicated in violation of Vehicle and Traffic Law § 1192 (2), and recklessdriving. After a jury trial, he was convicted of criminally negligent homicide as a lesserincluded offense of manslaughter in the second degree, vehicular manslaughter in thesecond degree, reckless endangerment in the second degree, driving while intoxicated inviolation of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192, andreckless driving.
Viewing the evidence in the light most favorable to the prosecution (see People v[*2]Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of criminally negligent homicideand vehicular manslaughter in the second degree beyond a reasonable doubt. Theevidence that the defendant caused the victim's death by speeding while he wasintoxicated was legally sufficient evidence of criminally negligent homicide (seePeople v Loughlin, 76 NY2d 804, 807 [1990]). Moreover, a defendant may be foundcriminally responsible for homicide, even if his or her conduct was not the sole cause ofdeath, as long the defendant's actions were a "sufficiently direct cause" of death by"setting in motion" the events that caused the death (People v DaCosta, 6 NY3d 181, 184 [2006] [internalquotation marks and brackets omitted]). In the instant case, the facts indicate that thedefendant's actions set events in motion that caused the victim's death.
A person is guilty of vehicular manslaughter in the second degree when he or she,inter alia, operates a motor vehicle while intoxicated in such a manner as to cause thedeath of another person (see Penal Law § 125.12 [1]). The law providesthat "[i]f it is established that the person operating such motor vehicle . . .caused such death while unlawfully intoxicated . . . then there shall be arebuttable presumption that, as a result of such intoxication . . . such personoperated the motor vehicle . . . in a manner that caused such death" (PenalLaw § 125.12). That statutory presumption was properly applied in this case.
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt as to criminallynegligent homicide and vehicular homicide in the second degree was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
As the People correctly concede, the convictions of driving while intoxicated inviolation of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 must bedismissed as inclusory concurrent counts of vehicular manslaughter in the second degree(see Penal Law § 125.12 [1]; Vehicle and Traffic Law § 1192 [2],[3]; People v Grier, 37 NY2d 847 [1975]; People v Bain, 85 AD3d 1193, 1194 [2011]; People v Peryea, 68 AD3d1144, 1145 [2009]; Peoplev Osborne, 60 AD3d 1310 [2009]).
The defendant's contention that the jury instructions with respect to causation wereerroneous is unpreserved for appellate review (see CPL 470.05 [2]) and, in anyevent, without merit (see Peoplev DaCosta, 6 NY3d 181, 184 [2006]).
The sentences imposed on the convictions of vehicular manslaughter in the seconddegree, criminally negligent homicide, reckless endangerment in the second degree, andreckless driving were not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dickerson,Cohen and Hinds-Radix, JJ., concur.