| People v Gallo |
| 2015 NY Slip Op 08660 [133 AD3d 1088] |
| November 25, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony Gallo, Appellant. |
Brian M. Callahan, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered June 6, 2013, upon a verdict convicting defendant of the crimesof aggravated vehicular homicide, manslaughter in the second degree and leaving thescene of an incident without reporting and the traffic infraction of failure to stop at a redlight.
At approximately 7:30 p.m. on November 16, 2011, defendant struck and fatallyinjured the victim with his pickup truck as he ran a red light. Defendant immediately leftthe scene. After a tip, law enforcement was able to track down defendant's vehicle andthen defendant. Following a jury trial, defendant was convicted of aggravated vehicularhomicide, manslaughter in the second degree, leaving the scene of an incident withoutreporting and failing to stop at a red light. Defendant was sentenced, as a second felonyoffender, to 12
Initially, defendant's contention that a sample of his blood should have beensuppressed because law enforcement lied to him about the purpose for which it soughtthe sample is unpreserved, as defendant did not apprise County Court of this allegederror (see People v Durrin,32 AD3d 665, 666 [2006]). In any event, defendant's contention is without merit.The uncontested evidence established that defendant agreed to the administration of theblood test. The voluntariness of defendant's consent to that intrusion is not underminedby law enforcement's failure to apprise defendant that it sought the blood test for thepurpose of obtaining incriminating evidence against him (see generally People vAtkins, 85 NY2d 1007, [*2]1008 [1995]; People v Centerbar, 80 AD3d1008, 1009-1010 [2011]).
Next, defendant contends that his convictions for aggravated vehicular homicide andmanslaughter in the second degree were based on legally insufficient evidence or wereagainst the weight of the evidence. More specifically, defendant contends that bothconvictions must fall due to the lack of evidence—or lack of persuasiveevidence—that he was impaired by drugs at the time of the accident. As is relevantto this particular challenge, the crime of aggravated vehicular homicide requires proof ofa defendant's impairment by drugs at the time of the accident (see Penal Law§§ 125.12 [1]; 125.14; People v Stickler, 97 AD3d 854, 854 [2012], lvdenied 20 NY3d 989 [2012]). Contrary to defendant's contention, however, the jurywas not required to find that defendant was impaired by drugs in order to find him guiltyof manslaughter in the second degree (see People v Briskin, 125 AD3d 1113, 1119 [2015], lvdenied 25 NY3d 1069 [2015]). A person commits manslaughter in the second degreewhen he or she recklessly causes the death of another person (see Penal Law§ 125.15 [1]). A person acts recklessly when he or she "is aware of andconsciously disregards a substantial and unjustifiable risk that such result will occur orthat such circumstance exists" (Penal Law § 15.05 [3]). "A person whocreates such a risk but is unaware thereof solely by reason of voluntary intoxication alsoacts recklessly with respect thereto" (Penal Law § 15.05 [3]).
Turning to the record, one eyewitness testified that, after vehicles had stopped at thered light, a truck revved its engine, passed the stopped cars—by using the rightturn lane—and then proceeded straight through the intersection "like a bat out ofhell." Another witness testified that, after hearing a loud noise, he observed a trucktraveling fast. A third eyewitness explained that, at the time, he believed he waswitnessing a joke because of the manner in which the truck "blasted right through" thevictim, who had been crossing the intersection, and then kept traveling without brakingor stopping.
Another witness, who acknowledged that he knew defendant personally and hadused drugs with him on occasion, testified that he was certain that he had been withdefendant earlier on the evening of the accident. According to the same witness'stimeline, defendant had arrived at his house approximately 1
This evidence was legally sufficient to permit the jury to find that defendant wasimpaired by drugs (see People v Briskin, 125 AD3d at 1119) so as to support aconviction for [*3]aggravated vehicular homicide. Theevidence was also legally sufficient for the jury to conclude that defendant acted with therequisite recklessness required for manslaughter in the second degree, whether based ona conclusion that defendant was aware of and consciously disregarded the substantial andunjustifiable risk of death that he created, or that his unawareness of such risk was solelythe result of his voluntary intoxication (see People v Hart, 266 AD2d 698, 700[1999], lv denied 94 NY2d 880 [2000]). Further, deferring to the jury's credibilitydeterminations, the convictions were not against the weight of the evidence (seePeople v Briskin, 125 AD3d at 1120). Defendant's remaining contentions are withoutmerit.
Rose, Lynch and Devine, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:The officer explainedthat he made this speed estimate based on the fact that defendant's vehicle threw thevictim 85 feet. He further acknowledged that this was necessarily a conservative estimateof defendant's speed, because the victim would have traveled further had the vehicle notpropelled her into a light pole.