People v Williams (2017 NY Slip Op 04302)

People v Williams

2017 NY Slip Op 04302 [150 AD3d 1273]

May 31, 2017

Appellate Division, Second Department

As corrected through Wednesday, June 28, 2017

[*1]

The People of the State of New York,Respondent,
v
Lloyd Williams, Appellant.

Leon H. Tracy, Jericho, NY, for appellant, and appellant pro se.

Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Jason R. Richardsof counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins,J.), rendered April 17, 2013, convicting him of murder in the second degree, aggravatedvehicular homicide (four counts), manslaughter in the second degree, vehicular manslaughter inthe first degree (three counts), aggravated vehicular assault (three counts), vehicular assault in thefirst degree (three counts), assault in the second degree, aggravated operating a motor vehiclewhile under the influence of alcohol as a felony, operating a motor vehicle while under theinfluence of alcohol as a felony (two counts), driving while ability impaired by drugs, drivingwhile ability impaired by the combined influence of drugs or of alcohol and any drug or drugs,aggravated unlicensed operation of a motor vehicle in the first degree, and reckless driving, upona jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the convictions ofmanslaughter in the second degree, vehicular manslaughter in the first degree, vehicular assaultin the first degree, aggravated operating a motor vehicle while under the influence of alcohol as afelony, operating a motor vehicle while under the influence of alcohol as a felony, driving whileability impaired by drugs, driving while ability impaired by the combined influence of drugs or ofalcohol and any drug or drugs, aggravated unlicensed operation of a motor vehicle in the firstdegree, and reckless driving, vacating the sentences imposed thereon, and dismissing thosecounts of the indictment; as so modified, the judgment is affirmed.

On the evening of June 17, 2011, the defendant smoked marijuana until he was high, thenwent out with his friend, Laron Harrison, to celebrate the defendant's birthday. The defendantdrank alcohol at the Phase Bar (hereinafter the bar) in Freeport into the early morning hours ofJune 18, 2011, became intoxicated, and was removed from the bar by a bouncer. The defendantand Harrison started a fistfight with the bouncer outside the bar, and a shot was fired from a gun.Although it is unclear from the record who fired the shot, the defendant and Harrison fled afterthe shot was fired. The bouncer saw the defendant drive away from the parking lot in his vehicleat approximately 3:00 a.m. A bystander and a plainclothes detective both saw Harrison get intothe defendant's vehicle on a nearby street.

The detective followed the defendant's vehicle in an unmarked police car with lights andsirens activated through a residential neighborhood for approximately two miles. The detectivetestified that he observed the defendant consistently exceed the speed limit of 30 miles per hour,traveling at speeds between 60 and 70 miles per hour. The defendant ran several red lights andstop [*2]signs, through various intersections. The detectivetestified that the defendant did not slow down as he approached these red lights and stop signs.The detective described one of the intersections as a major thoroughfare, running east and westwith four lanes of traffic, with a large tree blocking the view of oncoming traffic.

According to the detective, the defendant accelerated away from him while proceedingeastbound on Pine Street, a side street, reaching a speed of over 80 miles per hour. At that point,the detective stopped pursuing the defendant. Shortly thereafter, the defendant collided with avehicle operated by Chad Whethers at the intersection of Pine Street and Guy Lombardo Avenue,a main road in Freeport. The impact split Whethers' vehicle in two, instantly killing him. Atraffic engineer testified that the traffic light was generally green on Guy Lombardo Avenue, onwhich Whethers had been proceeding, and red on Pine Street, on which the defendant had beenproceeding, unless a traffic detector or push button was activated, in which case it took at leastsix seconds for the light to change. Video footage from a local store located on a corner of theintersection revealed that another vehicle traveling on Guy Lombardo Avenue went through theintersection at Pine Street, only seconds before the defendant's vehicle collided with Whethers'vehicle. Notably, no skid marks were observed in the area of impact.

After the impact, the defendant's vehicle came to rest on the front lawn of a Pine Streetresidence about 150 feet east of the intersection. A resident, awakened by the sound of the crash,observed the defendant limp down an alleyway toward the back of the residence. The defendantwas found by another detective crouching in a basement stairwell in the rear of the residence.According to that detective, the defendant's speech was slurred, his eyes were bloodshot, and hesmelled of alcohol. Harrison remained in the front passenger seat of the defendant's vehicle andhad to be extricated from the vehicle by the fire department. He suffered a cervical spine fractureas a result of the accident.

The defendant was arrested and transported to the hospital. A blood sample taken from himat 4:16 a.m., just over one hour after the accident, indicated that his blood alcohol content(hereinafter BAC) was 0.25% and that he tested positive for marijuana. At 9:45 a.m., the policeobtained a second blood sample from the defendant pursuant to a court order and that bloodsample indicated that the defendant's BAC was 0.13% and that he tested positive formarijuana.

At trial, the defendant invoked the defense of justification by necessity (Penal Law§ 35.05 [2]), claiming that he was fleeing from the bouncer who was shooting athim and Harrison, and that he was also rushing Harrison to a hospital because Harrison told himthat he had been shot. The defendant was convicted by a jury of murder in the second degree(depraved indifference murder), four counts of aggravated vehicular homicide, manslaughter inthe second degree, three counts of vehicular manslaughter in the first degree, three counts ofaggravated vehicular assault, three counts of vehicular assault in the first degree, assault in thesecond degree, aggravated operating a motor vehicle while under the influence of alcohol as afelony, two counts of operating a motor vehicle while under the influence of alcohol as a felony,driving while ability impaired by drugs, driving while ability impaired by the combined influenceof drugs or of alcohol and any drug or drugs, aggravated unlicensed operation of a motor vehiclein the first degree, and reckless driving. He was acquitted of assault in the first degree (depravedindifference assault).

Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove thedefendant's justification defense beyond a reasonable doubt (see Penal Law§ 35.15 [2]; People v Craig, 78 NY2d 616 [1991]), and to prove thedefendant's guilt of murder in the second degree (depraved indifference murder) and four countsof aggravated vehicular homicide (Penal Law §§ 125.25 [2]; 125.14 [1], [2][b]; [3], [5]) beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt as to those crimeswas not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633,644-645 [2006]).

Here, the evidence proved beyond a reasonable doubt that the defendant recklessly engagedin conduct which created a grave risk of death to another person. First, the defendant wasknowingly driving with a revoked driver license. Second, the defendant was driving whileintoxicated with a BAC of approximately 0.25%, and high on marijuana. Third, the defendantengaged in a high-speed chase with the police for approximately two miles. Fourth, during thischase, the defendant sped through narrow streets of a residential neighborhood, traveling atspeeds of more than double the legal limit. The defendant also ran through numerous stop signsand red traffic lights, without slowing down.

The evidence further demonstrated that prior to the crash, the defendant sped eastbounddown Pine Street, a residential street with stop signs and traffic lights, reaching a speed of over80 miles per hour. Perhaps most significantly, the compelling circumstantial evidencedemonstrated that as the defendant approached a red traffic light at the intersection of GuyLombardo Avenue, he narrowly missed another vehicle that crossed the intersection, and secondslater, without slowing down, he ran the red light and crashed into Whethers' vehicle with suchforce that he split the vehicle in two, instantly killing Whethers. The direct and circumstantialevidence proved that the defendant deliberately drove his vehicle into this intersection with anutter disregard for the value of human life, and thus was legally sufficient to support thedetermination that the defendant acted with depraved indifference (see People v Heidgen, 22 NY3d259 [2013]; People vMcPherson, 89 AD3d 752, 755 [2011], affd sub nom. People v Heidgen, 22NY3d 259 [2013]; People v Wells,53 AD3d 181, 189-190 [2008]).

The defendant's testimony did not warrant a different result. The defendant testified that hedid not see the flashing lights of the detective's vehicle behind him, and did not hear a siren. Thedefendant further testified that he was unaware of the speed limit, or the speed at which he wasdriving. Moreover, with respect to the stop signs and traffic lights that he encountered, thedefendant testified that he "wasn't really paying attention" and was not aware that he ran any stopsigns. The defendant also testified that he did not remember what happened when he reached theintersection of Pine Street and Guy Lombardo Avenue, and did not recall the crash. Thedefendant denied any responsibility for causing the death of Whethers, and testified that the wayhe drove that evening "wasn't something . . . I could control." The defendantdescribed the accident that killed Whethers as "a coin toss . . . [a]nybody could havelost their life in that accident. I could have also died."

The cases cited by our dissenting colleague do not dictate a different result as they aredistinguishable on the facts. In People vMaldonado (24 NY3d 48 [2014]), the defendant was not driving while intoxicated orhigh on drugs, and most importantly, during the high speed chase, the defendant made an effortto avoid hitting other vehicles while evading the police. The Court of Appeals found that arational jury could not have reasonably found the defendant guilty of depraved indifferencemurder beyond a reasonable doubt because "[t]his conscious avoidance of risk is the antithesis ofa complete disregard for the safety of others" (id. at 54). Here, there was no evidence thatthe defendant made any effort to avoid hitting other vehicles during the chase. Indeed, the criticalvideo footage, and other evidence from the crash scene, demonstrated that the defendant spedinto the intersection without braking or swerving, notwithstanding that a car with its headlightson was approaching the intersection, which the defendant missed by mere seconds, only to strikeWhethers' vehicle immediately thereafter.

People v Valencia (14 NY3d927 [2010]) involved an intoxicated motorist traveling at a high rate of speed in the wrongdirection on a Long Island parkway when he crashed head-on into another vehicle and thencareened into another car. In rendering the verdict that the defendant was guilty of assault in thefirst degree pursuant to Penal Law § 120.10 (3), the trial court in Valencia,after a nonjury trial, stated that the evidence established that the defendant was highly intoxicatedat the time of the accident and "was simply oblivious to all of the indices of alarm andwarning attendant to his dangerous travel on the parkway" (emphasis added). However, the courtalso found that the defendant created a grave risk of harm by becoming extremely intoxicatedknowing that he would [*4]eventually drive himself home fromhis friend's house. This Court vacated the first-degree assault conviction, concluding that thedefendant's state of mind before he drove home was too remote in time from the car crash (see People v Valencia, 58 AD3d879 [2009], affd 14 NY3d 927 [2010]). The Court of Appeals affirmed, finding thatthe evidence established only that the defendant was extremely intoxicated, and did not establishthat he acted with the culpable mental state of depraved indifference. Unlike Valencia,the evidence here established that the defendant was neither totally oblivious nor incapable ofcomprehending the gravity of his actions due to his intoxication. Indeed, after the crash, thedefendant fled his vehicle, which had been rendered inoperable, and hid in a basement stairwellin the rear of a nearby residence. This evidence demonstrated the defendant's consciousness ofguilt and that he comprehended the gravity of his actions due to his intoxication. It also bearsnoting that in Valencia, the defendant was traveling on a parkway, while here, thedefendant was traveling at high rates of speed on narrow, residential streets.

Viewing the facts of this case in their totality, we disagree with our dissenting colleague'sfinding that the defendant's conduct was not sufficiently egregious to support a conviction ofdepraved indifference murder. Indeed, the defendant's conduct here is consistent with the conductof the defendants Heidgen, Taylor, and McPherson (see People v Heidgen, 22 NY3d 259 [2013]) wherein the Court ofAppeals found legally sufficient evidence to support their convictions for depraved indifferencemurder. The defendants in those three cases, as the defendant in this case, all essentiallyproceeded recklessly at full speed, without slowing or swerving, into their victims, without anycare as to the grievous harm that could occur. Cognizant of our role to view the evidence in thelight most favorable to the prosecution, we find that the evidence was legally sufficient to provethe defendant's guilt of depraved indifference murder. Moreover, the verdict of guilt of depravedindifference murder was not against the weight of the evidence.

Contrary to the People's contention, the defendant's challenge to the legal sufficiency of theevidence of depraved indifference murder based upon his argument that his intoxication negatedthe culpable mental state of depraved indifference to human life is preserved for appellatereview, as the defendant moved, albeit unsuccessfully, for dismissal on this ground at the close ofthe People's case (see People vFinch, 23 NY3d 408 [2014]; People v Soto, 8 AD3d 683 [2004]). Nevertheless, the record doesnot support an inference that the defendant's mental state was so affected by his consumption ofalcohol that he did not possess the requisite mental state (see People v Heidgen, 87 AD3d 1016, 1022 [2011], affd 22NY3d 259 [2013]; cf. People vValencia, 14 NY3d 927 [2010]).

Contrary to the defendant's contention, the verdict finding him guilty of depravedindifference murder with respect to the death of Whethers was not inherently inconsistent andrepugnant to the verdict finding him not guilty of depraved indifference assault with respect toHarrison (see People v Muhammad,17 NY3d 532, 538-539 [2011]; People v Tucker, 55 NY2d 1 [1981]).

As the People correctly concede, the defendant's convictions of vehicular manslaughter in thefirst degree, aggravated operating a motor vehicle while under the influence of alcohol as afelony, operating a motor vehicle while under the influence of alcohol as a felony, driving whileability impaired by drugs, driving while ability impaired by the combined influence of drugs or ofalcohol and any drug or drugs, aggravated unlicensed operation of a motor vehicle in the firstdegree, and reckless driving must be vacated and those counts of the indictment dismissed asinclusory concurrent counts of the convictions of aggravated vehicular homicide (seeCPL 300.40 [3] [b]; Penal Law §§ 125.14 [1], [2] [b]; [3]; 125.13 [1], [2][b]; [3]; Vehicle and Traffic Law §§ 511 [3] [a] [i]; 1192 [2-a] [a]; [2], [3],[4]; 1212). Moreover, as the People correctly concede, the defendant's convictions of vehicularassault in the first degree must be vacated and those counts of the indictment dismissed asinclusory concurrent counts of the convictions of aggravated vehicular assault (see CPL300.40 [3] [b]; Penal Law §§ 120.04-a [1], [3], [4]; 120.04 [1], [3], [4]), andthe defendant's conviction of manslaughter in the second degree must be vacated and that countof the indictment dismissed as an inclusory concurrent count of depraved indifference murder(see CPL 300.40 [3] [b]; Penal Law §§ 125.15 [1]; 125.25 [2]).

The sentences imposed on the convictions of murder in the second degree and aggravatedvehicular homicide were not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Contrary to the defendant's contention, raised at points two and four of his pro sesupplemental brief, he was not deprived of the effective assistance of counsel, as defense counsel[*5]provided meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).

The defendant's remaining contentions regarding the grand jury proceeding, raised in pointfour of his pro se supplemental brief, are without merit. Rivera, J.P., Roman and LaSalle, JJ.,concur.

Leventhal, J., concurs in part and dissents in part, and votes to modify the judgment, on thelaw, by vacating the convictions of murder in the second degree, vehicular manslaughter in thefirst degree, vehicular assault in the first degree, aggravated operating a motor vehicle whileunder the influence of alcohol as a felony, operating a motor vehicle while under the influence ofalcohol as a felony, driving while ability impaired by drugs, driving while ability impaired by thecombined influence of drugs or of alcohol and any drug or drugs, aggravated unlicensedoperation of a motor vehicle in the first degree, and reckless driving, vacating the sentencesimposed thereon, and dismissing those counts of the indictment, and to affirm the judgment as somodified, with the following memorandum: Since I believe that the evidence was legallyinsufficient to support the defendant's conviction of depraved indifference murder, I respectfullydissent in part.

"A verdict is legally sufficient when, viewing the facts in a light most favorable to thePeople, there is a valid line of reasoning and permissible inferences from which a rational jurycould have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,349 [2007] [internal quotation marks omitted]). "A sufficiency inquiry requires a court tomarshal competent facts most favorable to the People and determine whether, as a matter of law,a jury could logically conclude that the People sustained [their] burden of proof" (id. at349).

A person is guilty of depraved indifference murder when, "[u]nder circumstances evincing adepraved indifference to human life, [such person] recklessly engages in conduct which creates agrave risk of death to another person, and thereby causes the death of another person" (Penal Law§ 125.25 [2]). Depraved indifference is a culpable mental state which "is bestunderstood as an utter disregard for the value of human life" (People v Feingold, 7 NY3d 288, 296 [2006] [internal quotationmarks omitted]). "Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinousand despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficientin a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthyas to render the actor as culpable as one whose conscious objective is to kill" (People v Suarez, 6 NY3d 202, 214[2005] [internal quotation marks omitted]). "Quintessential examples are firing into a crowd;driving an automobile along a crowded sidewalk at high speed; opening the lion's cage at thezoo; placing a time bomb in a public place; poisoning a well from which people are accustomedto draw water; opening a drawbridge as a train is about to pass over it and dropping stones froman overpass onto a busy highway" (id. [citations omitted]). "[I]ntoxicated driving cases ingeneral, although clearly examples of dangerous behavior, are not thought of as 'quintessential'cases of depraved indifference" (Peoplev Heidgen, 22 NY3d 259, 276 [2013]).

In People v Heidgen, the Court of Appeals, while stating that "intoxicated drivingcases that present circumstances evincing a depraved indifference to human life are likely to befew and far between," found that the "evidence in each of these unusually egregious cases waslegally sufficient to support the convictions" (id. at 267). The defendant Heidgen "drovethe wrong way on the highway for over two miles without reacting to other drivers coming athim, car horns, or wrong way signage. Perhaps most significantly, more than one witnesstestified that defendant appeared to follow, or track, the headlights of oncoming vehicles"(id. at 277). The jury reasonably could have concluded that defendant Heidgen droveknowing that he was on the wrong side of a highway, and that he "engage[d] in what amount[ed]to a high speed game of chicken" (id.).

The defendant Taylor drove on a local road at speeds between 80 and 90 miles per hour,without headlights, on the wrong side of the road, and struck a pedestrian who was crossing thestreet (id. at 271-272). Although she perceived at least some of the obstacles in her path,notably the pedestrian victim prior to striking him, the defendant Taylor, who was wearing herseat belt, did not slow down, sound her horn, or make any attempt to swerve to avoid thepedestrian (see id. at [*6]272, 278). After striking thepedestrian, and without slowing, the defendant Taylor continued driving in the lane for oncomingtraffic, ran a red light, and struck a vehicle that was stopped at that light, injuring the vehicle'soccupants (see id. at 272).

The defendant McPherson drove at excessive speed in the wrong direction on the SouthernState Parkway for approximately five miles (see id. at 273, 279). During thattime—more than four minutes—he did not appear to apply his brakes and severaloncoming cars swerved to avoid him (see id. at 279). He also passed numerous signs thatshould have alerted him that he was traveling in the wrong direction (see id.). In addition,he did not slow down or pull over in response to a truck driver sounding his air horn (seeid.).

In contrast, in People vMaldonado (24 NY3d 48, 49-50 [2014]), the Court of Appeals "conclud[ed] that theevidence was legally insufficient to support defendant's conviction for depraved indifferencemurder because the circumstances of this high-speed vehicular police chase d[id] not fit withinthe narrow category of cases wherein the facts evince a defendant's utter disregard for humanlife." There, the defendant consistently drove well above the speed limit of 30 miles per hour andviolated numerous traffic rules as he attempted to evade capture by the police (see id. at50). The defendant, while running a red light, narrowly avoided hitting a pedestrian in thecrosswalk, and, instead of applying the brake or slowing down, the defendant accelerated northand again swerved across the double-yellow lines into the southbound lane to avoid slowermoving vehicles (see id.). The defendant did not slow down when he entered theopposing lane of traffic and, as a result, a driver going south had to swerve to the side of the roadto avoid a collision (see id.). While running a third red light, the defendant struck apedestrian in the crosswalk (see id.). The pedestrian died at the scene (see id. at51). The defendant continued accelerating north, again swerving into the southbound lane,causing a driver headed south to swerve into the northbound lane to avoid a head-on collisionwith the defendant's vehicle (see id.). The chase ended when the defendant crashed hisvehicle into a parked car to avoid hitting other vehicles (see id.).

The Court of Appeals majority in Maldonado stated that the "[d]efendant's recklessdriving does not, on its own, establish the requisite mens rea of depraved indifference"(id. at 55). "If careless and unsafe driving were enough to meet this requirement, then wewould have affirmed the defendant's conviction of depraved indifference murder in People v Prindle (16 NY3d 768[2011])" (id.). In Prindle, the defendant led the police on a high-speed chase alonghighways and residential streets, while he sped, drove erratically, crossed double-yellow linesinto oncoming traffic, and wove into the passing lane (see People v Maldonado, 24 NY3dat 55, citing People v Prindle, 16 NY3d at 771-772 [Pigott, J., dissenting]). The defendantalso barreled through several red lights and caused the drivers of other cars to swerve or stop toavoid a collision; after the police deactivated their lights and siren, the defendant continued tospeed, swerved into oncoming traffic, turned onto local streets, ran a red light, and struck a truck(see People v Maldonado, 24 NY3d at 55, citing People v Prindle, 16 NY3d at772-773). Thereafter, although he had room to navigate around it, the defendant hit another carand killed one of its occupants (see People v Maldonado, 24 NY3d at 55, citingPeople v Prindle, 16 NY3d at 773). Nevertheless, in applying the trial court's charge asgiven without objection—which charge was based on the subsequently overruled standardset forth in People v Register (60 NY2d 270 [1983], overruled People v Feingold, 7 NY3d 288 [2006])—theCourt of Appeals held that the "evidence adduced at trial does not support the jury's conclusionthat defendant evinced a depraved indifference to human life" (People v Prindle, 16NY3d at 771).

To similar effect is People vValencia (14 NY3d 927 [2010]). In Valencia, the Court of Appeals majority, in amemorandum, held that there was insufficient evidence to support a conviction of depravedindifference assault (see id.). "The trial evidence established only that defendant wasextremely intoxicated and did not establish that he acted with the culpable mental state ofdepraved indifference" (id. at 927-928). Judge Graffeo, concurring, stated that the"[d]efendant's blood alcohol level was about three times the legal limit when he drove at night inthe wrong direction on a Long Island parkway at a high rate of speed. He continued on thiscourse despite attempts by oncoming drivers to warn him of the danger he was creating"(id. at 928 [Graffeo, J., concurring]). "After approximately four miles, defendant crashedhead-on into another vehicle and then careened into another car. Defendant's response after beinginformed that he had injured other people was: 'I don't know and I don't care' "(id.).

Here, despite the pronouncement of Chief Judge Lippman in Heidgen, that [*7]"intoxicated driving cases that present circumstances evincing adepraved indifference to human life are likely to be few and far between" (People vHeidgen, 22 NY3d at 267), once again we have a case where the People sought a depravedindifference murder conviction for an intoxicated driver. But the case at bar is not an "unusuallyegregious case[ ]" (id.) where the evidence was legally sufficient to support the murderconviction. The majority recounts that the defendant, while drunk, high, and trying to evade thepolice, drove for over two miles through the streets of a residential neighborhood, traveling atspeeds more than double the speed limit, ran through numerous stop signs and red traffic signals,and, seconds after nearly striking one vehicle in the vicinity of an intersection, crashed into ChadWhethers' vehicle, splitting Whethers' vehicle in two and instantly killing Whethers. Consistentwith Maldonado, Heidgen, Prindle, and Valencia, thecircumstances in this case do not fit within the narrow category of cases where the facts evince adefendant's utter disregard for human life. The defendant did not, for example, drive on thewrong side of a road or highway and did not engage in what amounted to a high-speed game of"chicken." The defendant's failure to slow down in the seconds between the time he narrowlymissed another vehicle and the time he struck Whethers' vehicle is not analogous to failing toslow down after striking a pedestrian or vehicle and does not reveal a depravedly indifferentmental state.

Notably, the defendant was convicted of four counts of aggravated vehicular homicide.Aggravated vehicular homicide is a class B felony and carries a penalty of up to 25 yearsimprisonment (see Penal Law §§ 70.00 [2] [b]; 125.14). Judge Read,dissenting in Heidgen, wrote that "[i]n fashioning this crime [aggravated vehicularhomicide], the legislature was, at least in part, responding to prosecutors' pleas that '[r]ecent courtdecisions [i.e., Feingold and the decisions leading up to it] ha[d] so limited theapplication of the depraved indifference statutes to vehicular crimes as to make theminapplicable' " (People v Heidgen, 22 NY3d at 286 [Read, J., dissenting],quoting Letter from District Attorneys Assn. of the State of N.Y., June 15, 2007 at 16, BillJacket, L 2007, ch 345 [pertaining to SB 5517, AB 8791]). Judge Read also commented, "thelegislature has addressed the proper standards for assessing the culpability of drunk drivers whocause fatalities, and the proper measure of their punishment. And it did not choose to do so byamending the second-degree murder statute" (People v Heidgen, 22 NY3d at 286).

The case at bar illustrates what Judge Smith warned of in his dissent in Heidgen:"Cases in which intoxicated drivers kill innocent people are among the most inflammatory, andthus among the most likely to generate depraved indifference murder convictions where aconviction of a lesser (but still serious) crime is all that is warranted" (id. at 281 [Smith,J., dissenting]). The defendant deserves to be held culpable for Whethers' death. However, thedefendant's conduct behind the wheel, though reckless, selfish, and stupid, was not "so wanton,so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and soblameworthy as to render the [defendant] as culpable as one whose conscious objective is to kill"(People v Suarez, 6 NY3d at 214 [internal quotation marks omitted]).

Accordingly, I would modify the judgment by, inter alia, vacating the conviction of murderin the second degree, vacating the sentence imposed thereon, and dismissing that count of theindictment. Since I would vacate the murder conviction, I would not dismiss, as an inclusoryconcurrent count, the conviction of manslaughter in the second degree. I agree with mycolleagues in the majority in all other respects.