| People v Jakobson |
| 2014 NY Slip Op 05354 [119 AD3d 815] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Peder D. Jakobson, Jr., Appellant. |
Michael L. Soshnick, Mineola, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and DonaldBerk of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered May 11, 2012, convicting him of assault in the first degree,assault in the second degree, vehicular assault in the second degree, recklessendangerment in the first degree, reckless endangerment in the second degree, drivingwhile ability impaired by the combined influence of drugs or of alcohol and any drug ordrugs, driving while impaired by drugs, reckless driving, criminal possession of ahypodermic instrument (three counts), criminal possession of a controlled substance inthe seventh degree, unlawful possession of marijuana, and unsafe transportation ofhazardous materials in a motor vehicle, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofassault in the first degree and reckless endangerment in the first degree, vacating thesentences imposed thereon, and dismissing those counts of the indictment; as somodified, the judgment is affirmed.
On the evening of December 4, 2009, the defendant drove his mother's Jeep from herhouse in Nassau County into Manhattan so that he could attend a concert by the bandPhish at Madison Square Garden. Between 8:00 a.m. and 8:30 a.m. on December 5,2009, the defendant called his father, stating that he was on his way to a methadoneclinic in Glen Oaks. The defendant had been enrolled at the methadone clinic for 28months. After leaving the clinic, the defendant called his father again, stating that hewould be home in about 15 minutes. Wendy Piserchia testified that, at approximately9:40 a.m., she was driving eastbound on Northern Boulevard in Brookville, traveling atapproximately 50 to 55 miles per hour, but not faster, as it was drizzling. After hearing a"big, loud crash" and skidding noises, she looked in her rear-view mirror and saw thatthere had been an accident between the defendant's vehicle and another vehicle, whichwas driven by Joseph Petrone. She did not witness how the accident occurred.
Meanwhile, Seth Yablans, who had been driving westbound on Northern Boulevardin Brookville, saw an explosion of debris. He also did not witness how the accidenthappened. Both Piserchia and Yablans pulled their respective vehicles over onto the sideof the [*2]roadway and then helped the defendant out hisvehicle, which had flipped over. Shortly thereafter, police and paramedics arrived.Yablans and Piserchia both testified at trial that, as the defendant observed theparamedics trying to remove Petrone from his vehicle, the defendant appeared to be veryupset and kept repeating statements to the effect of "man, I'm so sorry, I'm so sorry, ohmy God, man, I'm so sorry." As a result of the accident, Petrone sustained seriousphysical injuries.
The first police officer to arrive at the accident scene testified at trial that bothvehicles had flipped over, and were lying on the shoulder of the roadway. The officerfurther testified that the defendant's vehicle had sustained significant front-end damageand that Petrone's vehicle had sustained significant rear-end damage. Additionally, theparamedic who treated the defendant at the accident scene testified that the defendantwas "very lethargic, very irrational." When the paramedic cut open the defendant's jacketto examine his chest, five objects fell out. One item was a clear container of what lookedlike marijuana and two yellow containers, one of which appeared to hold marijuana andanother which held a white substance. Additionally, there were two bottles marked"Methadone 170 milligrams," one of which was empty, and three syringes. Thedefendant told the paramedic that he had taken his daily methadone dose and that he wasaddicted to pain killers. The paramedic testified that, after finding the drugs, and uponobserving the defendant's behavior, he believed that the defendant was "high on sometype of drug."
At 1:34 p.m. on the day of the accident, a sample of the defendant's blood was takenpursuant to a court order, and drug testing was performed on the sample. Based upon hisreview of the results of that testing, Dr. William Closson, a forensic toxicologist, testifiedthat the defendant had ingested Ecstasy, cocaine, marijuana, benzylpiperazine(hereinafter BZP), and Ketamine a few hours prior to the collection of his blood sample.Significantly, Dr. Closson testified that, at the time of the accident, the defendant wasactively under the influence of Ecstasy, marijuana, BZP, Ketamine, and methadone. Heopined that the combined effect of these drugs would cause a person to be significantlyimpaired and render him or her unable to safely drive a car.
Gary Ferrucci, a detective in the Vehicular Crimes and Reconstruction Section of theNassau County Police Department arrived at the accident scene at approximately 11:30a.m. on the morning of the accident. He testified, among other things, that both vehiclesinvolved in the accident were traveling in the same eastbound direction, that the front ofthe defendant's vehicle collided straight into the rear of Petrone's vehicle, that the impactwas so significant that the front end of the defendant's vehicle showed significantdamage, and that the frame rail of Petrone's vehicle had buckled. He also testified thatboth vehicles came to rest about 75 to 100 feet from the point of impact on the shoulderof the roadway. Although there was no evidence that the defendant was speeding,Ferrucci testified that the defendant was driving at a faster rate of speed than Petronesince the defendant's vehicle collided into the rear of Petrone's vehicle. He furthertestified that his examination of the roadway and the two vehicles indicated that thedefendant did not brake prior to impact. Frank Kassel, a police automotive shopsupervisor, inspected both vehicles and found no mechanical defect or failure in eithervehicle that could have caused the accident.
The defendant's contention that his conviction of vehicular assault in the seconddegree under Penal Law § 120.03 (1) was not supported by legallysufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of that crime (see People v Mojica, 62 AD3d100, 110-113 [2009]). Moreover, upon our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt on that count was not against theweight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d633 [2006]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d at 621), we find that it was legally sufficient to support thedefendant's convictions of assault in the second degree under Penal Law§ 120.05 (4) and reckless endangerment in the second degree under PenalLaw § 120.20, crimes which require proof of reckless conduct (see People v Carrington, 30AD3d 175 [2006]; People v Grenier, 250 AD2d 874, 876-877 [1998];People v Bell, 112 AD2d 27, 27 [1985]; see also People v Lampon, 38 AD3d 682, 682-683 [2007]).Moreover, upon our independent [*3]review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt on those counts was not againstthe weight of the evidence (see People v Danielson, 9 NY3d at 348; People v Romero, 7 NY3d633 [2006]).
However, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d at 621), we find that the evidence was legally insufficientto support the defendant's convictions of assault in the first degree under Penal Law§ 120.10 (3) and reckless endangerment in the first degree under Penal Law§ 120.25. Both crimes require proof that the defendant acted with depravedindifference to human life. Depraved indifference is " 'best understood as an utterdisregard for the value of human life—a willingness to act not because one intendsharm, but because one simply doesn't care whether grievous harm results or not' "(People v Valencia, 14NY3d 927, 929 [2010], quoting People v Feingold, 7 NY3d 288, 296 [2006]). It isembodied in conduct that is " 'so wanton, so deficient in a moral sense ofconcern, 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 [serious physical injury to] another' " (People v Suarez, 6 NY3d202, 211 [2005], quoting People v Russell, 91 NY2d 280, 287-288[1998]).
The issue of whether a defendant possessed a state of mind evincing depravedindifference to human life is highly fact-sensitive, requiring a case-by-case analysis (see People v Hurdle, 106AD3d 1100, 1102 [2013]; see also People v McPherson, 89 AD3d 752, 757 [2011],affd 22 NY3d 259[2013]). Here, the prosecution's witnesses established that the defendant's vehicle,without braking, collided into the back of Petrone's vehicle while both were travelingeastbound in the left lane on Northern Boulevard. The collision was of such force thatboth vehicles left the roadway and flipped over. Moreover, the testimony of the forensictoxicologist demonstrated that, at the time of the accident, the defendant wassignificantly impaired due to his ingestion of six different drugs, including methadone.Nevertheless, the evidence of the defendant's conduct did not support a finding ofdepraved indifference. The defendant was not driving well in excess of the speed limit,he was not driving the wrong way into oncoming traffic, he had not failed to obey trafficsignals, and there was no evidence that he was driving erratically prior to the collision(see People v Heidgen, 22 NY3d 259 [2013]). Under these factual circumstances,the prosecution failed to establish that the defendant possessed an "utter disregard for thevalue of human life" or that he "simply [did not] care whether grievous harm result[ed]or not" from his actions (People v Valencia, 14 NY3d at 929; see also People v Prindle, 16NY3d 768, 771 [2011]). Consequently, there is simply no "valid line of reasoningand permissible inferences [that] could lead a rational person to the conclusion"(People v Prindle, 16 NY3d at 773; see People v Contes, 60 NY2d at621) that the defendant acted with depraved indifference to human life when he causedthe injuries to Petrone (see People v Hurdle, 106 AD3d at 1103). Skelos, J.P.,Austin, Sgroi and LaSalle, JJ., concur.