| People v Carbonaro |
| 2015 NY Slip Op 09744 [134 AD3d 1543] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Taylor D. Carbonaro, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered January 27, 2015. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the second degree, vehicular manslaughter in the second degree, drivingwhile intoxicated, a misdemeanor (two counts) and reckless driving.
It is hereby ordered that the judgment so appealed from is unanimously affirmed andthe matter is remitted to Monroe County Court for proceedings pursuant to CPL 460.50(5).
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of manslaughter in the second degree (Penal Law § 125.15 [1]),vehicular manslaughter in the second degree (§ 125.12 [1]), recklessdriving (Vehicle and Traffic Law § 1212), and two counts of driving whileintoxicated (§ 1192 [2], [3]). The charges arose from an automobileaccident that resulted in the death of defendant's girlfriend (decedent). The accidentoccurred when a vehicle occupied by defendant and decedent veered off the road at ahigh speed and struck a utility pole and then a tree. The primary issue at trial was whetherdefendant was operating the vehicle at the time of the accident. The jury rendered aguilty verdict on all counts of the indictment, evidently resolving that factual issueagainst defendant.
Defendant failed to preserve for our review his contention that the trial evidence islegally insufficient to establish that he was operating the vehicle at the time of theaccident. Although defendant moved at the close of the People's case for a trial order ofdismissal on the ground that the People failed to prove that element of the crimescharged, he did not renew the motion after the defense rested (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Nichols, 89 AD3d1503, 1504 [2011]). In any event, we conclude that the contention is without merit.The evidence established that defendant admitted three separate times to the police thathe was driving the vehicle and that, during the ambulance ride to the hospital, he told aparamedic that he "screwed up," he was sorry, and he had never done "this before."Defendant also admitted that he was driving to an ex-girlfriend who visited him in thehospital while he was recovering from the injuries he sustained in the accident. Theex-girlfriend testified, "He told me that he went to the bar with [decedent] and beforeleaving the bar they got in an argument and he told me he remembers driving likespeeding because he was angry." She further testified that, several months later,defendant called her and said that he had good news, i.e., that his statements to the policewere "getting tossed out," and that, if the charges were dismissed, he would use "this as asecond chance to start school."
Further, the evidence established that the vehicle was registered to defendant, andthat decedent did not even have a driver's license. According to decedent's father, withwhom she and defendant lived, decedent to his knowledge never had driven the vehicle.In addition, an acquaintance of the couple who was at the bar drinking with them beforethe accident testified that he saw defendant leave the bar with keys in his hand and say,"I'm going home." That [*2]witness also testified thatdecedent followed defendant down the street, presumably to the vehicle. Yet anotherwitness testified that, when he saw the vehicle in question speeding down the roadmoments before the accident, the driver was "slouching" down in the driver's seat andleaning on the center console. Decedent was only four feet, nine inches tall, seven inchesshorter than defendant, making it unlikely that she could have been so positioned whileoperating the vehicle.
We also note that defendant's expert witness agreed with the People's expert that thedriver was ejected almost immediately after the vehicle struck the tree, and that thepassenger was in the vehicle for a longer period of time after the collision, thussubjecting the passenger to more injuries. Defendant sustained only a fractured leg and acut to his head, while decedent suffered many more injuries of greater severity. It isundisputed that decedent's blood was found on the front passenger's seat, and none ofdefendant's blood was found anywhere in the vehicle. Decedent's body was found lyingnext to the stopped vehicle, directly outside the driver's door, as if she had fallen out,while defendant was found some 20 to 30 feet away from the vehicle, trapped under atrailer. Finally, defendant had a compression injury to his left leg that appeared to havebeen caused by his leg striking the window crank on the driver's door, and the MedicalExaminer testified to a reasonable degree of medical certainty that such injury wascaused by the window crank.
To be sure, defendant attempted at trial to explain or controvert the above evidence,and there is other evidence suggesting that decedent may have been operating thevehicle. In determining whether the evidence is legally sufficient, however, we mustview the evidence in the light most favorable to the People (see People v Cabey,85 NY2d 417, 420 [1995]; People v Contes, 60 NY2d 620, 621 [1983]), andafford them the benefit of every favorable inference (see People v Bleakley, 69NY2d 490, 495 [1987]). Applying that standard of review, we conclude that the evidenceis more than sufficient to establish that defendant was operating the vehicle at the time ofthe accident.
Moreover, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contentionthat the verdict is against the weight of the evidence (see generally Bleakley, 69NY2d at 495). Defendant's contention is based largely on his assertion that the medicalevidence conclusively establishes that decedent was operating the vehicle. According todefendant, the injuries sustained by decedent could have come only from her headstriking the steering wheel, which was bent toward the front windshield. We reject thatassertion. Although that medical evidence is probative, it is not conclusive. As thePeople's expert testified, decedent's injuries could have occurred by her head striking thecenter console or some other part of the vehicle's interior other than the steeringwheel.
Moreover, defendant's expert agreed that decedent emerged from the vehicle throughthe driver's door, which opened upon impact, and it is therefore possible that her head orface came into contact with the steering wheel after the vehicle's initial impact with theutility pole. As noted above, both experts agreed that the driver was ejected from thevehicle almost immediately upon impact with the tree. Because the air bag in the steeringwheel deployed immediately, then quickly deflated, and the driver's body was pushedsharply to the left, and not forward, it is entirely possible, as the People's expert opined,that the driver's head never struck the steering wheel. In sum, we conclude that, althougha different verdict would not have been unreasonable, it cannot be said that the juryfailed to give the evidence the weight it should be accorded (see People v Kalinowski, 118AD3d 1434, 1436 [2014], lv denied 23 NY3d 1064 [2014]; People v Hennings, 55 AD3d1393, 1393 [2008], lv denied 12 NY3d 758 [2009]).
Defendant next contends that his Miranda rights were violated and thatCounty Court therefore erred in refusing to suppress statements he made to a sheriff'sdeputy at the accident scene and at the hospital, subsequent statements he made to aninvestigator, as well as the results of a blood test conducted at the hospital showing thathe was intoxicated. We conclude that the court properly refused to suppress thatevidence. The first statement defendant sought to suppress was his admission to thedeputy at the accident scene that he had "too much to drink" and that he had been drivingthe vehicle. The deputy's questioning of defendant at that time, however, was "merelyinvestigatory and did not constitute custodial interrogation to which Miranda isapplicable" (People v Saunders, 174 AD2d 700, 701 [1991]; see People vWilliams, 81 [*3]AD3d 993, 993 [2011], lvdenied 16 NY3d 901 [2011]; People v Palmiere, 124 AD2d 1016, 1016[1986]).
We further conclude that defendant was not in custody when he was questioned bythe same deputy in the hospital trauma bay, where defendant again admitted that he wasdriving, and that such admission therefore was not obtained in violation of defendant'sMiranda rights (seePeople v Rounds, 124 AD3d 1351, 1352 [2015], lv denied 25 NY3d1077 [2015]; People vGore, 117 AD3d 845, 846 [2014], lv denied 24 NY3d 1084 [2014]). "Indetermining whether a defendant was in custody for Miranda purposes, '[t]he testis not what the defendant thought, but rather what a reasonable [person], innocent of anycrime, would have thought had he been in the defendant's position' " (People v Kelley, 91 AD3d1318, 1318 [2012], lv denied 19 NY3d 963 [2012], quoting People vYukl, 25 NY2d 585, 589 [1969], cert denied 400 US 851 [1970]). Here,defendant was not restrained in any way by the police while at the hospital, and thequestioning by the deputy was investigatory and not accusatory in nature (see People v Drouin, 115AD3d 1153, 1155-1156 [2014], lv denied 23 NY3d 1019 [2014]; People v O'Hanlon, 5 AD3d1012, 1012 [2004], lv denied 3 NY3d 645 [2004]; People v Ripic,182 AD2d 226, 231-232 [1992], appeal dismissed 81 NY2d 776 [1993]).
Inasmuch as it is common knowledge that the police prepare reports with respect tomotor vehicle accidents even where no criminal conduct is suspected, we conclude that areasonable, innocent person in defendant's position at the hospital would not have feltthat he or she was in custody when asked questions about the accident by the deputy (see generally People vBorukhova, 89 AD3d 194, 212-213 [2011], lv denied 18 NY3d 881[2012], reconsideration denied 18 NY3d 955 [2012]). Instead, a reasonable,innocent person would have thought that the deputy was "still in the process of gatheringinformation about the [accident] prior to taking any action" (People v Dillhunt, 41 AD3d216, 217 [2007], lv denied 10 NY3d 764 [2008]; see People v Taylor, 57 AD3d327, 328 [2008], lv denied 12 NY3d 860 [2009]). Although defendant wasin custody when he was subsequently interviewed by the investigator, he knowingly andvoluntarily waived his Miranda rights before speaking to the investigator (see People v Allen, 104 AD3d1170, 1171 [2013], lv denied 21 NY3d 1001 [2013]; People v Hernandez, 67 AD3d820, 820-821 [2009], lv denied 13 NY3d 939 [2010]).
Defendant nevertheless contends that all of his statements to the police should havebeen suppressed because, owing to his injuries and the pain medication he was given atthe hospital, he was incapable of making voluntary statements. Similarly, defendantcontends that he was unable to voluntarily waive his Miranda rights and consentto the blood test at the hospital. We reject those contentions. Even assuming, arguendo,that defendant's thought process was affected by his head injury and the pain heexperienced from his fractured leg, we conclude that the record does not support afinding that he was "unable to understand the meaning of his statements" (People vSchompert, 19 NY2d 300, 305 [1967]). Defendant responded appropriately toquestions asked of him by the deputy and the medical personnel who treated him. Forinstance, when questioned by a nurse at the hospital, defendant was able to state hisname, his date of birth, and the reason he was at the hospital. According to the nurse,who testified at the Huntley hearing, defendant was aware of his surroundingsand did not appear to have difficulty understanding anything that she said. Furthermore,when speaking to the deputy at the hospital, defendant recalled the name of the bar hewas at earlier that evening, and accurately stated the name of the road on which theaccident occurred. As the court noted in its suppression decision, at no time diddefendant "give nonsensical or otherwise inappropriate answers to questions, nor did heramble or rant on unrelated topics." Under the circumstances, we conclude thatdefendant's cognitive ability was not so impaired as to render him unable to makevoluntary and trustworthy statements (see generally People v Meissler, 305 AD2d724, 725-726 [2003], lv denied 100 NY2d 644 [2003]; People vMercado, 198 AD2d 380, 381 [1993], lv denied 82 NY2d 927 [1994];People v Pearson, 106 AD2d 588, 588-589 [1984]), or to waive his Mirandarights knowingly and voluntarily (see People v Torres, 220 AD2d 785, 786[1995], lv denied 87 NY2d 908 [1995]; People v Butler, 175 AD2d 252,253 [1991], lv denied 79 NY2d 854 [1992]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Centra, J.P., Peradotto, Carni, Lindley and DeJoseph, JJ.