| People v Ryan |
| 2018 NY Slip Op 03380 [161 AD3d 893] |
| May 9, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Ryan, Appellant. |
Hug Law, PLLC, Albany, NY (Matthew C. Hug of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley, Yael V. Levy, andSarah S. Rabinowitz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Philip M.Grella, J.), rendered March 9, 2016, convicting him of manslaughter in the second degree,vehicular manslaughter in the second degree, aggravated criminally negligent homicide,criminally negligent homicide, assault in the third degree, reckless driving, driving whileintoxicated (two counts), reckless endangerment in the second degree, and leaving the scene ofan incident without reporting, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the convictions ofmanslaughter in the second degree, vehicular manslaughter in the second degree, aggravatedcriminally negligent homicide, and criminally negligent homicide, vacating the sentencesimposed thereon, and dismissing those counts of the indictment; as so modified, the judgment isaffirmed.
The charges against the defendant arise from an incident that occurred in the pre-dawn hoursof October 18, 2013. The trial evidence showed that the defendant was driving eastbound on theLong Island Expressway (hereinafter the expressway) in Nassau County, when his vehiclesideswiped another vehicle. Shortly thereafter, the defendant stopped short in front of anothervehicle, or abruptly changed lanes and "cut off" that vehicle, resulting in a second collision. Thedefendant's vehicle spun and came to rest in the high-occupancy vehicle (hereinafter HOV) laneof this four-lane stretch of the expressway, facing a barrier wall. The HOV lane was on the farleft of the expressway, and the other three lanes of traffic were to the right of the HOV lane.Several other drivers stopped along the right shoulder of the expressway, and some of thoseindividuals walked across the roadway to assist the defendant. One driver stopped his vehicle inthe far-left lane of the expressway, roughly adjacent to the defendant's vehicle, and that driver lefthis headlights on. Several minutes after the second collision, a police officer responded andparked his vehicle on the far-right side of the roadway, with the emergency lights activated.
The responding police officer walked across the roadway and, while standing next to thedefendant's car, spoke to the defendant. At this point, according to trial witnesses, traffic wascontinuing to proceed slowly through the accident scene, using the center lane of the threeregular lanes of traffic, which was the only open lane, and driving past or over some collisiondebris. A driver in a black sport-utility vehicle (hereinafter SUV) approached thescene.
[*2] The trial evidence, including the evidencederived from a "black box" event recorder in the SUV, showed that the driver of the SUVapproached the scene at 40 miles per hour, then slowed to only 37 miles per hour as heapproached the defendant's vehicle. The driver of the SUV testified that, as he neared this area,his attention was focused on the right side of the roadway, where there were several stoppedvehicles and a police patrol vehicle with flashing lights. The SUV struck the defendant's vehicleand then struck the police officer. The driver of the SUV testified that he did not brake until onesecond prior to the impact. The police officer died as a result of the accident. The trial evidenceshowed that the defendant was found to have a blood-alcohol content of 0.12% upon his arrivalat a hospital approximately one hour after this incident.
Upon a jury verdict, the defendant was convicted of manslaughter in the second degree,vehicular manslaughter in the second degree, aggravated criminally negligent homicide,criminally negligent homicide, assault in the third degree, reckless driving, driving whileintoxicated (two counts), reckless endangerment in the second degree, and leaving the scene ofan incident without reporting.
In evaluating a challenge to a conviction based on the legal sufficiency of the trial evidence, acourt must "determine whether there is any valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion reached by the jury on the basis of theevidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People vContes, 60 NY2d 620, 621 [1983]). The court, while viewing the evidence in the light mostfavorable to the People, must determine whether any rational trier of fact could have found thatevery element of the crime charged was established beyond a reasonable doubt (see People vLewis, 64 NY2d 1111, 1112 [1985]; People v Contes, 60 NY2d at 621).
"To be held criminally responsible for a homicide, a defendant's conduct must actuallycontribute to the victim's death by 'set[ting] in motion' the events that result in the killing" (People v DaCosta, 6 NY3d 181,184 [2006] [citation omitted], quoting People v Matos, 83 NY2d 509, 511 [1994])."Liability will attach even if the defendant's conduct is not the sole cause of death if the actionswere a 'sufficiently direct cause of the ensuing death' " (People v DaCosta, 6NY3d at 184 [citation omitted], quoting People v Stewart, 40 NY2d 692, 697 [1976]).More than an " 'obscure or merely probable connection' between the [defendant's]conduct and result is required" (People v DaCosta, 6 NY3d at 184, quoting People vStewart, 40 NY2d at 697). Rather, "an act 'qualifies as a sufficiently direct cause when theultimate harm should have been reasonably foreseen' " (People v DaCosta, 6NY3d at 184, quoting People v Matos, 83 NY2d at 511; see Matter of AnthonyM., 63 NY2d 270, 280 [1984]; People v Stewart, 40 NY2d at 697). The criticalinquiry is whether the defendant's conduct was an "actual contributory cause of [the] death, in thesense that [it] 'forged a link in the chain of causes which actually brought about thedeath' " (Matter of Anthony M., 63 NY2d at 280, quoting People vStewart, 40 NY2d at 697). An intervening, independent act will not constitute a supersedingcause that exonerates a defendant, unless " 'the death is solely attributable to thesecondary agency, and not at all induced by the primary one' " (Matter of AnthonyM., 63 NY2d at 280, quoting People v Kane, 213 NY 260, 270 [1915]; see Peoplev Bonilla, 95 AD2d 396, 410 [1983]).
At bar, the People adduced legally sufficient evidence that the defendant's actions set inmotion the events that led to the death of the police officer, and that the defendant's conduct wasa sufficiently direct cause of that result. It was reasonably foreseeable that the defendant'sconduct, including driving while intoxicated, causing the initial collision, failing to stop after theinitial collision, and causing a second collision, would cause a dangerous condition on theroadway that would pose a danger to police or other first responders, particularly in theimmediate aftermath of the incidents and prior to the securing of the accident scene (seePeople v DaCosta, 6 NY3d at 186; People v Uribe, 109 AD3d 844, 844 [2013]; People v Cipollina, 94 AD3d1549, 1549 [2012]; cf. People vBallenger, 106 AD3d 1375 [2013]). The People adduced legally sufficient evidence ofcausation as to the counts of manslaughter in the second degree, vehicular manslaughter in thesecond degree, aggravated criminally negligent homicide, and criminally negligenthomicide.
In addition, the jury charge as to the principles of causation was proper, as it was based onthe model charge contained in the Criminal Jury Instructions (see CJI2d[NY] Penal Lawart 125; Causation; People v Uribe, 109 AD3d at 844; see also People v Prospect, 50 AD3d 1064, 1064 [2008]; People v Lubrano, 43 AD3d 829,830 [2007]; People v Pedro, 36AD3d 832, 833 [2007]; People v [*3]McDonald, 283AD2d 592, 593 [2001]). Contrary to the defendant's contention, the Supreme Court did not err incurtailing cross-examination questions of the driver of the SUV regarding his alleged lengthyrecord of driving offenses, his alleged receipt of a grant of immunity, and the "offenses he couldhave been charged with" arising from this incident. While the SUV driver had a record of drivingviolations that went "back to the 1980s," including seven accidents from 1989 to 2015, and analleged 30 convictions of driving offenses such as speeding, failure to yield right of way, failureto obey traffic control devices, operating without insurance, and operating without a license,these issues were of minimal, if any, relevance to the issue of whether it was foreseeable to thedefendant that a driver would approach this accident scene and collide with one of the stoppedvehicles and/or a pedestrian, and had the potential to mislead or confuse the jury (see People v Best, 152 AD3d 617[2017]; People v Caballero, 137AD3d 929, 930 [2016]; People vLegere, 81 AD3d 746, 750 [2011]; People v Gaviria, 67 AD3d 701 [2009]; People v Francisco, 44 AD3d 870[2007]).
However, the jury verdict as to the manslaughter and homicide counts was against the weightof the evidence. In fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d at 495). Here, the verdict as to the manslaughter and homicide counts was against theweight of the evidence, particularly in light of the evidence that the driver of the SUV that struckthe police officer failed to pay attention to conditions on the roadway, including the presence ofmultiple stopped vehicles and debris on the road, and approached the accident scene at a speed inexcess of the speed at which other vehicles were traveling (see People v Romero, 7 NY3d 633 [2006]; see also People vBallenger, 106 AD3d at 1378-1379). Unlike our dissenting colleague's opinion, we find thatthe officer's death was not "temporally proximate" to the defendant's conduct. Indeed, thedecision our colleague relies upon as instructive is illustrative of the lack of temporal proximityin this case. In People v Uribe (109AD3d 844 [2013]), within seconds after an intoxicated and drugged defendant crashed hisSUV into a tree, causing his vehicle to spin around and face oncoming traffic without itsheadlights on, an instantaneous chain reaction of collisions resulted in the death of a motorcyclistwho was the operator of the third vehicle in the chain-reaction accident. Conversely, in theinstant matter, a full seven to ten minutes passed between the time the defendant's vehicle cameto rest on the roadway and the time when the police officer was struck by the SUV. During thisperiod of time, several other vehicles stopped in the area and illuminated the scene with theirlights, debris was strewn across the roadway at or just west of the accident site, and traffic wasbuilding up as other drivers either stopped, exited the expressway, or cautiously negotiated theaccident scene by traveling slowly through the center lane, which was the only lane open totraffic prior to the fatal collision. Unlike the situation in People v Uribe, this was not onecontinuous chain-reaction accident that unfolded within a matter of seconds. Rather, a substantialamount of time passed between the accidents involving the defendant's vehicle and thesubsequent accident in which the officer was struck by the SUV.
Contrary to the defendant's contention, viewing the evidence in the light most favorable tothe People (see People v Contes, 60 NY2d 620 [1983]), there was legally sufficient proofof causation as to the count of assault in the third degree (see People v Coleman, 148 AD3d 717, 717 [2017]; People v Keegan, 133 AD3d 1313[2015]). The People also adduced legally sufficient proof of causation as to the counts of recklessendangerment in the second degree (seePeople v Jakobson, 119 AD3d 815, 818 [2014]; People v Carrington, 30 AD3d 175 [2006]; People vIngram, 234 AD2d 318 [1996]), reckless driving (see People v Earley, 121 AD3d 1192, 1193 [2014]; People v Goldblatt, 98 AD3d 817,819 [2012]; People v Kohler, 85AD3d 1203 [2011]), and leaving the scene of an incident without reporting (see People v Grasing, 152 AD3d794, 794 [2017]; People vKohler, 85 AD3d 1203 [2011]). Moreover, the verdict was not against the weight of theevidence as to those counts (see Peoplev Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the sentences imposed with respect to the counts ofassault in the third degree, reckless endangerment in the second degree, reckless driving, andleaving the scene of an incident without reporting, were not excessive (see People vSuitte, 90 AD2d 80 [1982]).
In light of our determination, we need not reach the defendant's remaining contentions.Mastro, J.P., Cohen and Iannacci, JJ., concur.
Dillon, J., dissents, and votes to affirm the judgment, with the following memorandum: Irespectfully dissent and vote to affirm the judgment in all respects.
The issue that ultimately divides our panel is whether the convictions of manslaughter in thesecond degree, vehicular manslaughter in the second degree, aggravated criminally negligenthomicide, and criminally negligent homicide should be vacated as against the weight of theevidence. The specific ground on which this divided opinion is based is whether the operation ofa sports-utility vehicle (hereinafter SUV) by another driver broke the chain of causality betweenthe defendant's intoxicated driving on the one hand and a police officer's death on the other.
In order for the defendant to be held criminally liable for the officer's death, the defendantmust have engaged in conduct that "actually contribute[d]" to the police officer's death (People v DaCosta, 6 NY3d 181,184 [2006]) by setting into motion the events that resulted in the death (see People vMatos, 83 NY2d 509, 511 [1994]; People v Ryan, 125 AD3d 695, 697 [2015]). As noted by this Courtin an earlier appeal associated with the grand jury evidence in this matter, the defendant's actionsneed not be the sole cause of death and the defendant need not have committed the fatal act to beliable (see People v Ryan, 125 AD3d at 697, citing People v Matos, 83 NY2d at511-512). The test is whether it may be reasonably foreseen that the defendant's actions wouldresult in the victim's death, and if so, whether the defendant's actions constitute a sufficientlydirect cause of death as to warrant criminal liability (see People v DaCosta, 6 NY3d at186; People v Matos, 83 NY2d at 512; People v Kibbe, 35 NY2d 407, 412[1974]; People v Ryan, 125 AD3d at 697).
In reviewing the weight of the evidence, the court must first determine whether, based uponall of the credible evidence presented at trial, a different finding would not have beenunreasonable (see People v Romero,7 NY3d 633, 643 [2006]). If so, the court must, in the second instance, weigh the relativeprobative force of the conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony, and if the trier of fact failed to give the evidence the weight itshould be accorded, the court may set aside the verdict (see id. at 643; People vMateo, 2 NY3d 383, 415 [2004]; CPL 470.15 [5]). "Empowered with this unique factualreview, intermediate appellate courts have been careful not to substitute themselves for the jury"(People v Bleakley, 69 NY2d 490, 495 [1987]). "Great deference is accorded to thefact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" (id.at 495).
Here, in my view, the jury's verdict on the manslaughter and homicide counts was not againstthe weight of the evidence. At approximately 4:30 a.m. on October 18, 2012, the defendant,while driving with a blood alcohol content exceeding the legal limit, caused two separateaccidents with two separate vehicles in the same general vicinity of the Long Island Expressway(hereinafter the expressway), resulting in the defendant's vehicle coming to a stop in thethird-from-right travel lane. The defendant never attempted to position his vehicle off to theright, as did the drivers of the two vehicles involved in the other accidents with the defendant.The incident that resulted in the death of the police officer occurred at the precise location wherethe defendant's vehicle stopped in the roadway, and within approximately seven to ten minutes ofthat stop. Therefore, the police officer's death was geographically and temporally proximate tothe defendant's conduct leading to the defendant's motor vehicle being stopped in the middle ofthe high-occupancy vehicle lane (seePeople v Uribe, 109 AD3d 844 [2013]).
People v Uribe is instructive, as it involved an intoxicated and drugged defendantwho crashed his SUV into a tree, causing the SUV to spin around and face oncoming traffic withits headlights off. Seconds later a taxi cab struck the SUV, and a few seconds after that, amotorcycle struck the taxi cab, killing the motorcyclist. Although the defendant argued inUribe that the taxi cab and motorcycle were unforeseeable superseding causes of themotorcyclist's death, this Court affirmed the defendant's conviction of vehicular manslaughter inthe second degree, finding it was not against the weight of the evidence as to issues offoreseeability and causality. In contrast, People v Ballenger (106 AD3d 1375 [2013]), relied on by thedefendant, is readily distinguishable and not controlling here. In Ballenger, theautomobile accidents were too attenuated to support the defendant's conviction of two counts ofcriminally negligent homicide. The defendant in Ballenger crashed his vehicle in amanner that obstructed the roadway and backed up traffic for a considerable [*4]distance. The deaths at the end of the accident chain occurred 30minutes after the defendant's accident, and half a mile from where the defendant had crashed hisvehicle. Here, unlike in Ballenger, there was no attenuation as to location, and minimalattenuation as to time.
The jury's verdict is not against the weight of the evidence for an additional salient reason. Atrial witness was in the immediate vicinity of the accident involving the defendant's vehicle, theSUV, and the police officer. His testimony provided the greatest level of eyewitness detail aboutthe mechanics of the police officer's death. The witness described the SUV hitting the rear cornerpanel of the defendant's vehicle, which "spun the [defendant's] car and kicked the officer up inthe air." According to the witness, the police officer "turned over his left shoulder and looked atme, and then got hit, and then he got flown up in the air and the [SUV], being higher, hit him uptop on his hood." No other witness provided a different description of how the police officer wasstruck at the scene. Thus, the police officer's death involved contact with not one, but twovehicles—the defendant's vehicle when it spun and hit the police officer, propelling himinto the air, and the SUV that then struck the police officer with its hood. Clearly, the defendant'smotor vehicle was an integral instrumentality physically and directly involved in the policeofficer's death. It was present at the time and place of the police officer's death, because thedefendant, while intoxicated, and in the pre-dawn darkness, engaged in conduct resulting in hismotor vehicle being in a position of danger, in the middle of an expressway travel lane after twoearlier accidents in the vicinity. The defendant's vehicle, being a direct instrumentality in theevents leading to the police officer's death, brings the defendant within the chain of causality, andhis conduct at the scene rendered it foreseeable that such results could arise (see People vUribe, 109 AD3d at 844).
As in most every trial, there were conflicting inferences to be drawn from the evidence,including the inference accepted by the majority that the SUV was a sole superseding cause ofthe police officer's death. However, the jury, which is afforded great deference for its opportunityto view witnesses, hear testimony, and observe the demeanor of witnesses, could logically andcredibly have found on this record the requisite criminal negligence (see Penal Law§§ 125.10, 125.11), recklessness (see Penal Law § 125.15[1]), and intoxicated operation of a motor vehicle causing death (see Penal Law§ 125.12 [1]), sufficiently proximate in time and place, to support the convictionsrendered.
In my further view, the remaining issues raised by the defendant on appeal are without merit.For these reasons, the judgment should be affirmed.