| People v Hoffman |
| 2015 NY Slip Op 05976 [130 AD3d 1152] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Appellant-Respondent, v Brendan Hoffman,Respondent-Appellant. |
Joel E. Abelove, District Attorney, Troy (Vincent O'Neill of counsel), forappellant-respondent.
Danielle Neroni Reilly, Albany, for respondent-appellant.
Lynch, J. Appeals (1) from an order of the County Court of Rensselaer County(Young, J.), rendered April 7, 2014, which granted defendant's motion for a trial order ofdismissal, and (2) from a judgment of said court, rendered April 25, 2014, upon a verdictconvicting defendant of the crimes of vehicular manslaughter in the first degree (threecounts), manslaughter in the second degree, driving while intoxicated (three counts) andleaving the scene of an incident without reporting.
Shortly after midnight on June 28, 2012, defendant and Christopher Baker(hereinafter the victim), who had both been drinking beer and smoking marihuanathroughout the evening, left the victim's home in a Dodge Neon registered to defendant'sfather. As the car proceeded southbound on Cranston Hill Road in the Town ofStephentown, Rensselaer County, a northbound driver, Levi Borghi, observed the carcross the double yellow line, swerve into the southbound lane, strike a culvert pipe andflip several times before landing on its roof. The victim was ejected from the car. Borghiapproached and observed defendant within the upended car, unconscious and stretchedon the roof. Borghi called 911, but before help arrived, defendant woke and was able tocrawl from the vehicle. Amber Walker, the sister of defendant's girlfriend, happened tobe driving past. Walker stopped her car, recognized defendant, and drove him from thescene. Before leaving, defendant [*2]did not tell Borghior Walker that the victim had been in the car with him. First responders arrived andBorghi told them that defendant had just left. Rensselaer County deputy sheriffs on thescene called to have the car towed and the area was cleared of glass and debris. In themeantime, the victim's family learned of the accident and, concerned that he may havebeen in the car, began searching for him in the darkness. Sadly, a sheriff's deputy foundthe victim's body at approximately 5:15 a.m. in some brush about 20 feet from the edgeof the road.
Defendant was thereafter charged in a 13-count indictment with three counts each ofaggravated vehicular homicide, vehicular manslaughter in the first degree and drivingwhile intoxicated, and one count each of manslaughter in the second degree, leaving thescene of an incident without reporting, reckless driving and operating a motor vehicle inviolation of the conditions of a conditional license. After County Court severed the finalcharge pursuant to CPL 200.60, the case proceeded to a jury trial, where defendant wasconvicted on all remaining counts. The court subsequently granted defendant's renewedmotion for a trial order of dismissal and set aside the verdict as to the three counts ofaggravated vehicular homicide (counts 1, 4 and 7) and the single count of recklessdriving (count 12). Defendant was then sentenced to an aggregate prison term of 5 to 15years. The People now appeal from County Court's order dismissing four counts of theindictment and defendant appeals from the judgment of conviction.
Defendant first argues that several of the counts in the indictment should have beendismissed as multiplicitous. An indictment "is multiplicitous when a single offense ischarged in more than one count" (People v Alonzo, 16 NY3d 267, 269 [2011]). Accordingly,"[a]n indictment cannot charge a defendant with more than one count of a crime that canbe characterized as a continuing offense unless there has been an interruption in thecourse of conduct" (People vQuinones, 8 AD3d 589, 589-590 [2004] lv denied 3 NY3d 710 [2004];accord People v Moore, 59AD3d 809, 810-811 [2009]). "Where each count requires proof of an element notessential to the other, [however,] an indictment is not multiplicitous" (People vHenson, 263 AD2d 550, 550 [1999] [citations omitted], lv denied 93 NY2d1044 [1999]; see People v Kindlon, 217 AD2d 793, 795 [1995], lv denied86 NY2d 844 [1995]).
Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughterin the first degree pursuant to Penal Law § 125.13 (3), which requires proofthat defendant (1) committed the crime of vehicular manslaughter in the second degreeand (2) had been convicted within the preceding 10 years of violating Vehicle andTraffic Law § 1192 (see Penal Law § 125.13 [3]).Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicularhomicide pursuant to Penal Law § 125.14 (3), which requires proof thatdefendant (1) committed the crime of vehicular manslaughter in the second degree, (2)engaged in reckless driving and (3) had previously been convicted of a Vehicle andTraffic Law § 1192 violation within the preceding 10 years. As relevanthere, a person is guilty of vehicular manslaughter in the second degree when he or sheoperates a motor vehicle in violation of Vehicle and Traffic Law § 1192(2), (3) or (4-a) thereby causing the death of another person (see Penal Law§ 125.12 [1]).
In our view, these charges were predicated upon the same statutory provisions(see Penal Law §§ 125.13 [3]; 125.14 [3]), act and victim,differing only in the nature of defendant's impairment. In this regard, defendant wasalleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicatedcondition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs(counts 7 and 8) (see Vehicle and Traffic Law §§ 1192 [2], [3],[4-a]). The essential elements of both crimes do not address the specific manner in whichdefendant was impaired; rather, they include only a single offense of some form ofimpaired driving as defined within Penal Law § 125.12 (1). Accordingly,counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and8 must be dismissed as multiplicitous of count 2 (see [*3]People v Demetsenare, 243 AD2d 777, 779-780[1997], lv denied 91 NY2d 833 [1997]; People v Senisi, 196 AD2d 376,382 [1994]; see also People vBarnes, 64 AD3d 890, 892-893 [2009], lv denied 13 NY3d 858[2009]).[FN1]
Next, we turn to the parties' arguments with regard to the weight and sufficiency ofthe evidence presented to the jury. First, the People contend that County Court should nothave granted defendant's motion to dismiss the counts charging aggravated vehicularhomicide (counts 1, 4 and 7) and reckless driving (count 12). As set forth above, thecrime of aggravated vehicular homicide requires proof of reckless driving as defined bythe Vehicle and Traffic Law § 1212 (see Penal Law§ 125.14). Relevant here, reckless driving is defined as "driving or usingany motor vehicle . . . in a manner which unreasonably interferes with thefree and proper use of the public highway, or unreasonably endangers users of the publichighway" (Vehicle and Traffic Law § 1212). "[R]eckless driving 'calls forevidence showing something more than mere negligence' " (People v Goldblatt, 98 AD3d817, 819 [2012], lv denied 20 NY3d 932 [2012], quoting People vGrogan, 260 NY 138, 143 [1932]; see People v Bohacek, 95 AD3d 1592, 1594 [2012]), andreckless driving has been defined as operating a vehicle "under such circumstances as toshow a reckless disregard of the consequences" (People v Grogan, 260 NY at143-144; see People v Bohacek 95 AD3d at 1594).
We find that County Court erred by dismissing the aggravated vehicular homicideand reckless driving counts as legally insufficient. "A motion for a trial order of dismissalmay be granted where the trial evidence, if accepted as true without consideringquestions as to the quality or weight of the evidence, is legally insufficient to establishevery element of the offense charged" (People v Sala, 258 AD2d 182, 188 [1999][citation omitted], affd 95 NY2d 254 [2000]). Further, "[i]n determining whetherthe verdict is supported by legally sufficient evidence, [a] [c]ourt must view the evidencein the light most favorable to the prosecution and determine whether any valid line ofreasoning and permissible inferences could lead a rational person to the conclusionreached by the fact finder on the basis of the evidence at trial" (id. [internalquotation marks and citation omitted]).
In our view, the trial evidence was sufficient to demonstrate that defendant engagedin reckless driving. Two of defendant's friends testified that they were with defendantduring the hours before the accident and that defendant was intoxicated after drinkingsteadily from approximately 6:00 p.m. on June 27, 2012 until the time he left the victim'shouse at approximately 12:45 a.m. on June 28, 2012, and that he smoked marihuana atleast two times during that time. When defendant left the victim's house, the victimfollowed him because he was "not okay to drive." Borghi testified that defendant's cardrove toward him "at a high rate of speed" and across the double-yellow lineapproximately two feet into his lane. Borghi watched as defendant's car "went screechingby [him]," then he saw the tires lose traction and the car flip. The evidence also showedthat defendant's blood alcohol content was 0.057% approximately 6
Next, defendant contends that his convictions for vehicular manslaughter in the firstdegree, manslaughter in the second degree, driving while intoxicated and leaving thescene of an accident without reporting were against the weight of the evidence. Reviewof such a claim requires us to "first . . . determine whether an acquittalwould not have been unreasonable. If so, the court must weigh conflicting testimony,review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions. Based on the weight of the credible evidence, the courtthen decides whether the jury was justified in finding the defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007] [citation omitted]). Here, defendant claimsthat the People failed to prove beyond a reasonable doubt that he was the driver of theDodge Neon that crashed on Cranston Hill Road.
The testimony at trial was that in the afternoon before the accident, defendant, thevictim, the victim's sister and another friend went to an individual's home to drink beerand play horseshoes after they finished work at the victim's family's flower farm. It wasdefendant who drove the four in the Dodge Neon from the farm to the home, but thevictim drove them from the home to his own house, where the group continued to drink,smoke marihuana and play card and video games. At some point during the evening,defendant's girlfriend arrived and both the friend and victim's sister testified that therewas obvious tension between them. When defendant left abruptly, the victim asked theothers if he should go after him, because, according to the friend, defendant was not"okay to drive." The accident happened not much more than a mile from the victim'shome.
Borghi testified that when defendant crawled from the car after the accident, herecognized defendant as an acquaintance. According to Borghi, defendant was "shaky,nervous [and] panicking" and said that Borghi had to "get [him] out of [the area]." WhenBorghi asked if anyone else was in the car, defendant did not answer. Walker tookdefendant from the scene to the home that she shared with her mother and sisters. Whilethere, a deputy sheriff arrived looking for defendant, and defendant hid in Walker'sroom.
The physical evidence at trial was that the roof on the passenger side of the DodgeNeon was crushed more than the driver's side. The People's medical expert, MichaelSikirica, opined that the victim's fatal injuries were sustained when his head struck thepassenger's side roof while inside the car. Further, Sikirica testified that due to the natureof the injuries, the victim's head hit something soft, like the covered interior roof, ratherthan something hard or jagged. In contrast, there was testimony from defendant's expertthat, based on his review of photographs of the scene, the wrecked vehicle, and his owninspection and reconstructions, it was the driver who would have been ejected from thecar. Given this divergent testimony, we recognize that it would not have beenunreasonable for the jury to conclude that defendant was not driving the Dodge Neon.When we view the evidence in a neutral light and accord deference to the jury'scredibility determinations (seePeople v Romero, 7 NY3d 633, 644 [2006]; People v Peryea, 68 [*5]AD3d 1144, 1147 [2009]), we find that the jury gave theproper weight to the evidence regarding the operation of the vehicle and, therefore,defendant's convictions are not against the weight of the evidence (see People vReichel, 110 AD3d at 1363).
Next, defendant claims that County Court should have suppressed evidence obtainedas a result of the warrantless seizure of the Dodge Neon. Testimony at the suppressionhearing established that, at the request of law enforcement, defendant's vehicle wasremoved from the accident scene and taken to an unsecured lot, where it remained forseveral hours until it was transported—at the direction of a Rensselaer Countydeputy sheriff—to a secure impound lot. While defendant does not contest theinitial towing from the accident scene, he claims that the seizure of the vehicle from theunsecured lot to the secured lot was unconstitutional. We disagree. "It is well settled thatonce the police possess a reasonable belief that the vehicle was, in some way, associatedwith the crime and that a search of the vehicle would produce the fruits, instrumentalities,contraband or evidence of the crime the police can conduct[ ] a warrantless search andseizure of the vehicle" (People v Sweezey, 215 AD2d 910, 914 [1995], lvdenied 85 NY2d 980 [1995] [internal quotation marks and citations omitted]). Here,the vehicle was moved from a lot where it was easily accessible to any member of thepublic to the secure lot only after it became clear that it was involved in a fatal accident.Accordingly, County Court properly denied defendant's motion to suppress.
We have considered defendant's remaining arguments and find them to be withoutmerit.
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the order and judgmentare modified, on the law, by (1) reversing defendant's convictions of vehicularmanslaughter in the first degree under counts 5 and 8 of the indictment and (2) reversingso much of the order as granted defendant's motion for a trial order of dismissal and setaside the verdict as to aggravated vehicular homicide under counts 1 and 12 of theindictment; counts 5 and 8 dismissed, the sentences imposed thereon vacated, the verdicton counts 1 and 12 reinstated and matter remitted to the County Court of RensselaerCounty for sentencing on counts 1 and 12; and, as so modified, affirmed.
Footnote 1:We note that defendantwas properly charged under multiple subsections of Vehicle and Traffic Law§ 1192 for driving while intoxicated (see People v Demetsenare,243 AD2d at 780).
Footnote 2:Having dismissed counts4 and 7 as multiplicitous, the verdict on these counts is not reinstated.