| People v Gerbino |
| 2018 NY Slip Op 03179 [161 AD3d 1220] |
| May 3, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert R. Gerbino, Appellant. |
Nicholas E. Tishler, Niskayuna, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Otsego County (Lambert, J.),rendered July 13, 2015, convicting defendant following a nonjury trial of the crime of criminallynegligent homicide.
In November 2013, defendant—a licensed and experienced hunter of over 30years—and three other licensed hunters, including the victim, went on a hunting trip to aproperty in the Town of Westford, Otsego County. Prior to hunting, as part of their hunting safetyplan, the foursome agreed that they would hunt from separate tree stands located on the property.The path to each tree stand had been marked with fluorescent tape and had been previouslyadjusted "so that no stand had the hunter aimed in the direction of the other hunters." The huntersalso agreed that they would not engage in the hunting technique of "driving" the deer. Duringtheir first morning hunt, defendant and two of his companions reached their respective treestands; however, the victim was unable to locate his designated stand and, because he was usinga flashlight, was seen by the other hunters "wandering back to the camp." Upon returning to thecamp after the morning hunt, defendant and one of the other hunters—the propertyowner—spoke with the victim "about the danger of walking back the way he had anddiscussed how if in the future he left before the hunt was over, he should walk over the bank,down by the stream, where he would be out of the line of fire of any of the other hunters."
The parties reentered the woods around 2:00 p.m. for their afternoon hunt. Roughly [*2]three hours later, defendant "saw what he thought were antlers inthe same area where he had twice before on hunting trips shot a deer." From a distance ofapproximately 40 yards, defendant "raised his gun, looked through the scope, saw what hethought was the gray of the deer's chest and fired one shot." Defendant radioed the propertyowner that he had shot a buck and, after waiting "several minutes to see whether or not his deerwould take off," he went to check on the deer. Upon reaching the area at which he shot, however,defendant realized that he had shot the victim, his best friend of 17 years. The victim was "nowhere near the stream below the bank [that] he was to follow on his way back if he left his treestand early."
Defendant radioed the property owner that he had shot the victim, and the property ownercalled 911. When help arrived, defendant was "curled up on the ground next to [the victim]inconsolable in a fetal position." Defendant fully cooperated with the police during thesubsequent investigation, which revealed that there was "absolutely no malice between"defendant and the victim. All parties agreed that "what occurred was not an intentional act, butrather a tragic accident." A later autopsy of the victim's body demonstrated that, unbeknownst todefendant, the victim had both cocaine and opiates in his system. In contrast, "[t]here wasabsolutely no indication of any drug or alcohol use" by defendant. Further, the coroner wasquoted as saying that the camouflage clothing worn by the victim "may have looked like antlers."Defendant thought, in retrospect, that "perhaps . . . it was the rifle slung over [thevictim's] shoulder which appeared to be antlers."
Defendant was thereafter indicted on the charge of criminally negligent homicide. Defendantwaived his right to a jury trial and consented to a nonjury trial on the foregoing stipulated facts, atthe conclusion of which he was found guilty of criminally negligent homicide. County Courtsentenced defendant to a three-year conditional discharge and imposed a $1,000 fine, as well asfees and surcharges. Defendant appeals, solely arguing that the facts, as stipulated to by theparties, were legally insufficient to establish that he acted with the culpable mental state ofcriminal negligence, as required to support a conviction for criminally negligent homicide.
"A person is guilty of criminally negligent homicide when, with criminal negligence, he [orshe] causes the death of another person" (Penal Law § 125.10). As relevant here,the mens rea of "criminal negligence," as required for criminally negligent homicide, is the"fail[ure] to perceive a substantial and unjustifiable risk" of death (Penal Law§ 15.05 [4]). That "risk must be of such nature and degree that the failure toperceive it constitutes a gross deviation from the standard of care that a reasonable person wouldobserve in the situation" (Penal Law § 15.05 [4]). "[C]riminal liability cannot bepredicated on every act of carelessness resulting in death[;] . . . the carelessnessrequired for criminal negligence is appreciably more serious than that for ordinary civilnegligence" and "must be such that its seriousness would be apparent to anyone who shares thecommunity's general sense of right and wrong" (People v Boutin, 75 NY2d 692, 695-696[1990]; see People v Conway, 6NY3d 869, 871-872 [2006]; People v Ricardo B., 73 NY2d 228, 235 [1989]). Thedefendant must "engage[ ] in some blameworthy conduct creating or contributing to a substantialand unjustifiable risk" (People v Boutin, 75 NY2d at 696; see People v Cabrera, 10 NY3d370, 376 [2008]). Nonperception of a risk is insufficient to establish criminal negligence(see People v Conway, 6 NY3d at 872; People v Boutin, 75 NY2d at 696; People v Munck, 92 AD3d 63, 70[2011]).
Viewing the evidence in the light most favorable to the People (see People v Acosta,80 NY2d 665, 672 [1993]; People v Contes, 60 NY2d 620, 621 [1983]; People v Guglielmo, 30 AD3d830, 831 [2006], lv denied 7 NY3d 813 [2006]), there is no valid line of reasoningthat could have led County Court to conclude that defendant engaged in any "blameworthyconduct" [*3]that created or contributed to a substantial andunjustifiable risk of death (People v Boutin, 75 NY2d at 696; see People vCabrera, 10 NY3d at 376-377). As stipulated to by the parties, and unlike in People v Smith (121 AD3d 1297[2014], lv denied 25 NY3d 1172 [2015]), defendant had "no reason to believe [that] anyof his three companions would be in the area where he was shooting." Defendant's hunting partywas not engaged in the hunting practice of "driving" the deer (compare People v Smith,121 AD3d at 1298 n 1, 1299), and they had instead agreed to hunt from separate, stationary treestands that had been specifically positioned prior to the hunt "in such a way that no one would beshooting in the direction of another hunter." Additionally, after the victim had taken a dangerouspath back to the camp during the morning hunt, defendant and the property owner hadspecifically advised the victim that, should he decide to again leave his designated stand beforethe hunt was over, he should take a specific route, along a nearby stream, that was outside of thehunters' respective lines of fire. Moreover, there was no evidence that defendant had consumedany alcohol or drugs prior to the hunt, and he was unaware that the victim had cocaine andopiates in his system. While defendant made the tragic and deadly error of mistaking thecamouflage-dressed victim for a buck, we cannot say—under the stipulated set offacts—that his actions rose to the level of criminal negligence (see Penal Law§ 15.05 [4]; compare People v Smith, 121 AD3d at 1299-1300; People vGuglielmo, 30 AD3d at 831-832). Accordingly, because the evidence was insufficient as amatter of law to sustain defendant's conviction for criminally negligent homicide, the judgmentof conviction must be reversed and the indictment dismissed.
Garry, P.J., McCarthy, Lynch and Pritzker, JJ., concur. Ordered that the judgment isreversed, on the law, and indictment dismissed.