| People v Bradley |
| 2017 NY Slip Op 07032 [154 AD3d 1279] |
| October 6, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v JamesBradley, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (William G. Pixley of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedOctober 4, 2013. The judgment convicted defendant, upon a jury verdict, of criminally negligenthomicide and assault in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law,the indictment is dismissed, and the matter is remitted to Monroe County Court for proceedingspursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of criminallynegligent homicide (Penal Law § 125.10) and assault in the third degree(§ 120.00 [3]), defendant contends that the conviction is not supported by legallysufficient evidence because the evidence presented at trial varied from the limited theoriesalleged in the indictment, as amplified by the bill of particulars. We agree.
On May 9, 2011, defendant suffered a seizure while operating his vehicle, and the seizurecaused him to drive into a park, where he struck two children, killing one and injuring the other.Thereafter, defendant was indicted by a grand jury and charged with manslaughter in the seconddegree (Penal Law § 125.15 [1]) for recklessly causing a death; assault in thesecond degree (§ 120.05 [4]) for recklessly causing serious physical injury bymeans of a dangerous instrument, i.e., a motor vehicle; and driving while ability impaired bydrugs (Vehicle and Traffic Law § 1192 [4]) for operating a motor vehicle while hisability to do so was impaired by the use of a drug, i.e., marihuana. Prior to trial, defendant servedmultiple demands for a bill of particulars requesting, inter alia, that the People specificallydescribe how defendant was reckless. In response, the People specified only that "[t]he ingestionof marihuana and a failure to take medication were both factors that contributed to thedefendant's recklessness." Despite defendant's objections during the course of the trial, includinga motion for a trial order of dismissal at the close of the People's case and renewal of that motionat the close of all proof (see generally People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]), the People presented evidence that defendant was recklessbased upon not only marihuana use and failure to take medication, but also based upon, inter alia,his lack of sleep, failure to inform his doctors of his syncope events, and failure to control hisalcohol consumption. The jury found defendant not guilty of the indicted charges but guilty ofthe lesser included offenses of criminally negligent homicide and assault in the third degree.
We note at the outset that, contrary to the People's contention, defendant preserved the legalinsufficiency issue for our review. A conviction is supported by legally sufficient evidence"when, viewing the facts in [the] light most favorable to the People, 'there is a valid line ofreasoning and permissible inferences from which a rational jury could have found the elements ofthe crime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349 [2007]; see People vBleakley, 69 NY2d 490, 495 [1987]). "Where the charge against a defendant is limited either[*2]by a bill of particulars or the indictment itself, the defendanthas a fundamental and nonwaivable right to be tried only on the crimes charged" (People v Duell, 124 AD3d 1225,1226 [2015], lv denied 26 NY3d 967 [2015] [internal quotation marks omitted]). Here,because the People specifically narrowed their theory of recklessness in the bill of particulars,County Court was " 'obliged to hold the prosecution to this narrower theoryalone' " (id. at 1227; see People v Smith, 161 AD2d 1160, 1161[1990], lv denied 76 NY2d 865 [1990]).
The People did not present any evidence that marihuana use, in general, may cause seizuresor that marihuana use caused defendant's specific seizure herein. In addition, the People did notpresent any evidence that defendant had been prescribed anti-seizure medication and that he hadfailed to take it. Inasmuch as there was a variance between the People's trial evidence and theindictment as amplified by the bill of particulars, and that evidence was insufficient to supportthe theories of defendant's recklessness set forth in the bill of particulars, defendant wasessentially tried and convicted on charges for which he had not been indicted (see Duell,124 AD3d at 1227). The judgment of conviction therefore must be reversed and the indictmentmust be dismissed (see id.; People v Burns, 303 AD2d 1032, 1033-1034 [2003];Smith, 161 AD2d at 1161; cf.People v Graves, 136 AD3d 1347, 1348-1349 [2016], lv denied 27 NY3d 1069[2016]). Present—Smith, J.P., DeJoseph, Curran, Troutman and Winslow, JJ.