| People v Pino |
| 2018 NY Slip Op 04573 [162 AD3d 910] |
| June 20, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Carlos Pino, Respondent. |
Timothy D. Sini, District Attorney, Riverhead, NY (Michael J. Miller, Elizabeth Miller, andGlenn Green of counsel), for appellant.
Leonard Lato, Hauppauge, NY, for respondent.
Appeal by the People from so much of an order of the Supreme Court, Suffolk County(Fernando M. Camacho, J.), dated October 26, 2016, as dismissed the indictment as against thedefendant.
Ordered that the order is affirmed insofar as appealed from.
The defendant was indicted for various offenses based on a fatal accident that occurred onJuly 18, 2015, at the intersection of Route 48 and Depot Lane in Suffolk County. The evidencebefore the grand jury established that at approximately 5:00 p.m., the defendant, a limousinedriver, picked up eight passengers at a winery on Route 48. Upon exiting the parking lot, thedefendant was required to make a right turn, traveling east on Route 48. Since the defendantneeded to travel west on Route 48, he decided to make a U-turn at the next intersection, whichwas Route 48 and Depot Lane. After stopping and seeing no oncoming traffic, the defendantturned left into the intersection and was broadsided by a pickup truck traveling west on Route 48.The evidence before the grand jury indicated that the defendant's view of oncoming traffic waspartially obstructed by a vehicle waiting to make a left turn in the opposite turning lane on thewestbound side of Route 48. Four of the passengers in the limousine died in the collision. Thefour surviving passengers sustained injuries.
The defendant was charged with four counts of criminally negligent homicide, four counts ofassault in the third degree, one count of reckless driving in violation of Vehicle and Traffic Law§ 1212, and four additional violations of the Vehicle and Traffic Law. The SupremeCourt dismissed all of the counts against the defendant, concluding, inter alia, that the evidencepresented to the grand jury with respect to counts one through nine was legally insufficient. ThePeople appeal.
"Courts assessing the sufficiency of the evidence before a grand jury must evaluate 'whetherthe evidence, viewed most favorably to the People, if unexplained anduncontradicted—and deferring all questions as to the weight or quality of theevidence—would warrant conviction' " (People v Mills, 1 NY3d 269, 274-275 [2003], quoting People vCarroll, 93 NY2d 564, 568 [1999]; see People v Bello, 92 NY2d 523, 525 [1998]).CPL 70.10 (1) defines legally sufficient evidence as "competent evidence which, if accepted astrue, would establish every element of an offense charged and the defendant's [*2]commission thereof." "In the context of a Grand Jury proceeding,legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonabledoubt" (People v Bello, 92 NY2d at 526; see People v Deegan, 69 NY2d 976,978-979 [1987]). This Court's inquiry "is limited to 'whether the facts, if proven, and theinferences that logically flow from those facts supply proof of every element of the chargedcrimes,' and whether 'the Grand Jury could rationally have drawn the guilty inference' "(People v Bello, 92 NY2d at 526, quoting People v Deegan, 69 NY2d at979).
We agree with the Supreme Court's determination to dismiss counts one through four of theindictment, charging the defendant with criminally negligent homicide (Penal Law§ 125.10), and counts five through eight, charging him with assault in the thirddegree (Penal Law § 120.00 [3]). "A person is guilty of criminally negligenthomicide when, with criminal negligence, he causes the death of another person" (Penal Law§ 125.10). A person is guilty of assault in the third degree when "[w]ith criminalnegligence, he causes physical injury to another person by means of . . . a dangerousinstrument" (Penal Law § 120.00 [3]).
The Penal Law defines criminal negligence as follows: "A person acts with criminalnegligence with respect to a result or to a circumstance described by a statute defining an offensewhen he fails to perceive a substantial and unjustifiable risk that such result will occur or thatsuch circumstance exists. The risk must be of such nature and degree that the failure to perceiveit constitutes a gross deviation from the standard of care that a reasonable person would observein the situation" (Penal Law § 15.05 [4]). The Court of Appeals has stated that "thecarelessness required for criminal negligence is appreciably more serious than that for ordinarycivil negligence, and that the carelessness must be such that its seriousness would be apparent toanyone who shares the community's general sense of right and wrong. Moreover, criminalnegligence requires a defendant to have engaged in some blameworthy conduct creating orcontributing to a substantial and unjustifiable risk of a proscribed result; nonperception of a risk,even if [the proscribed result occurs], is not enough" (People v Conway, 6 NY3d 869, 872 [2006] [internal quotationmarks and citations omitted]; see Peoplev Cabrera, 10 NY3d 370, 376 [2008]).
Here, the grand jury evidence, viewed most favorably to the People, did not establish "thekind of seriously condemnatory behavior that the Legislature envisioned when it defined'criminal negligence,' even though the consequences here were fatal" (People v Cabrera,10 NY3d at 378; see People vMcGrantham, 12 NY3d 892, 893-894 [2009]; People v Boutin, 75 NY2d 692,697-698 [1990]).
We also agree with the Supreme Court's determination to dismiss count nine of indictment,charging the defendant with reckless driving (Vehicle and Traffic Law § 1212). Thegrand jury evidence, viewed most favorably to the People, did not establish that the defendantoperated his vehicle "under such circumstances as to show a reckless disregard of theconsequences" (People v Grogan, 260 NY 138, 144 [1932]).
The People's remaining contention is without merit. Roman, J.P., LaSalle, Connolly andChristopher, JJ., concur.