| People v West |
| 2018 NY Slip Op 07373 [166 AD3d 1080] |
| November 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Alexander M. West, Appellant. |
Cheryl Coleman, Albany, for appellant.
Jason M. Carusone, District Attorney, Lake George, for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered June 5, 2017, upon a verdict convicting defendant of the crimes ofmanslaughter in the second degree, assault in the second degree, criminally negligenthomicide, leaving the scene of an accident without reporting (two counts), boating whileability impaired by alcohol, reckless operation of a vessel and criminal possession of acontrolled substance in the seventh degree.
During the early evening of July 25, 2016, Robert Knarr was piloting his antiquewooden boat home on a post-dinner cruise with his family on Lake George when it wasstruck and overrun by another boat, which then left the scene. As a result of thiscollision, Knarr's eight-year-old granddaughter, Charlotte McCue, was killed and hisdaughter, Courtney McCue, Charlotte McCue's mother, was seriously injured. Policethereafter learned that defendant was a possible operator of the other boat and questionedhim the following morning.
In October 2016, defendant was charged in a 12-count indictment with manslaughterin the second degree, assault in the second degree, vehicular manslaughter in the seconddegree, vehicular assault in the first degree, vehicular assault in the second degree,criminally negligent homicide, leaving the scene of an accident without reporting (twocounts), boating while ability impaired by alcohol, boating while ability impaired bydrugs, reckless operation of vessel and criminal possession of a controlled substance inthe seventh degree, all related to this incident. Defendant thereafter moved to, amongother things, dismiss the indictment or, alternatively, for inspection of the grand juryminutes on the ground that there was legally insufficient evidence to support theindictment and that it was otherwise defective, which motion County Court denied.Following a jury trial, defendant was convicted of manslaughter in the second degree,assault in the second degree, criminally negligent homicide, leaving the scene of anaccident without reporting (two counts), boating while ability impaired by alcohol,reckless operation of a vessel and criminal possession of a controlled substance in theseventh degree, and acquitted of vehicular manslaughter in the second degree, vehicularassault in the first degree, vehicular assault in the second degree and boating while abilityimpaired by drugs. Defendant was [*2]thereaftersentenced to an aggregate term of 5 to 15 years in prison, with the sentences to runconcurrently. Defendant now appeals.
Defendant initially contends that the integrity of the grand jury proceeding wasundermined, and the indictment rendered defective, when the People presentedinadmissible blood test evidence to the grand jury. We disagree. A motion to dismiss anindictment may be granted upon a determination that the integrity of the grand juryproceedings has been so impaired that prejudice to the defendant may result (seeCPL 210.35 [5]; People v Huston, 88 NY2d 400, 406-408 [1996]; People vPelchat, 62 NY2d 97, 106 [1984]; People v Tatro, 53 AD3d 781, 783 [2008], lvdenied 11 NY3d 835 [2008]). Dismissal of an indictment, however, "is a drastic,exceptional remedy and 'should thus be limited to those instances where prosecutorialwrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decisionreached by the [g]rand [j]ury' " (People v Moffitt, 20 AD3d 687, 688 [2005], lvdenied 5 NY3d 854 [2005], quoting People v Huston, 88 NY2d at 409; accord People v Kidwell, 88AD3d 1060, 1061 [2011]). Notably, "[e]ven where inadmissible evidence ispresented to a grand jury, such will be deemed fatal only when the remaining evidence isinsufficient to sustain the indictment" (People v Sutherland, 104 AD3d 1064, 1066 [2013][internal quotation marks and citations omitted]; see People v Huston, 88 NY2dat 409).
Here, on the morning of July 26, 2016, defendant initially consented to a policerequest to have his blood drawn for chemical analysis, but, following receipt of a letterfrom a local attorney indicating that he was representing defendant, the Warren CountySheriff's Department delayed the planned blood draw and applied to County Court for asearch warrant. After an investigator for the Sheriff's Department received verbalauthorization from County Court, a sample of defendant's blood was drawn at an areahospital for analysis; however, no written search warrant was actually signed by CountyCourt until the following day, July 27, 2016. After defendant was indicted, and inresponse to defendant's omnibus motion, seeking, among other things, suppression of thechemical analysis of defendant's blood, the People conceded that defendant's blood drawwas not performed pursuant to a valid warrant and consented to suppression of his bloodtest results. There is no evidence in the record that the People made an intentionaldecision to present inadmissible evidence to the grand jury or otherwise acted in badfaith (see People v Boddie,126 AD3d 1129, 1130 [2015], lv denied 26 NY3d 1085 [2015]). Moreover,having reviewed the transcript of the grand jury proceedings, we find that there was otherlegally sufficient evidence presented to the grand jury to support the charges such thatdismissal of the indictment was not required under the circumstances (see People vHuston, 88 NY2d at 409; People v Gordon, 88 NY2d 92, 98 [1996]; People v Mesko, 150 AD3d1412, 1415 [2017], lv denied 29 NY3d 1131 [2017]; People vSutherland, 104 AD3d at 1067; People v Kidwell, 88 AD3d at 1061).
County Court did not err when it granted the People's for-cause challenge withrespect to sworn juror No. 107. As relevant here, "[a] challenge for cause of aprospective juror which is not made before he [or she] is sworn as a trial juror shall bedeemed to have been waived, except that such a challenge based upon a ground notknown to the challenging party at that time may be made at any time before a witness issworn at the trial" (CPL 270.15 [4]; People v Wlasiuk, 90 AD3d 1405, 1409 n 2 [2011];People v Jackson, 182 AD2d 919, 919 [1992], lv denied 80 NY2d 832[1992]). To that end, a party may challenge a prospective juror for cause if such juror"has a state of mind that is likely to preclude him [or her] from rendering an impartialverdict based upon the evidence adduced at the trial" (CPL 270.20 [1] [b]; see People v Harris, 19 NY3d679, 685 [2012]). Notably, "[i]f there is any doubt about a prospective juror'simpartiality, [the] trial court[ ] should err on the side of excusing the juror, since at worstthe court will have replaced one impartial juror with another" (People v Arnold,96 NY2d 358, 362 [2001] [internal quotation marks and citation omitted]; see Peoplev Harris, 19 NY3d at 685; People v Johnson, 17 NY3d 752, 753 [2011]; People v Powell, 153 AD3d1034, 1035-1036 [2017]; People v Briskin, 125 AD3d 1113, 1117 [2015], lvdenied 25 NY3d 1069 [2015]).
Here, juror No. 107 was the first juror selected during jury selection and he was dulysworn in by County Court. Unbeknownst to any of the parties at that time, however, theSheriff's [*3]Department had received a criminalcomplaint against juror No. 107 that very same day, accusing him of rape. The followingmorning, prior to continuation of jury selection, the People challenged him for causebased upon this development. Defendant objected, and, after hearing from both sides,County Court granted the People's challenge and discharged juror No. 107, withoutquestioning the juror himself. We find no abuse of discretion by County Court indischarging this juror as the prospect of him sitting as a juror in this case whilesimultaneously being investigated by the Sheriff's Department and potentially prosecutedby the Warren County District Attorney's office—the same two entities that had,respectively, investigated and were now prosecuting defendant—was clearly likelyto compromise the ability of juror No. 107 to render an impartial verdict (seeCPL 270.15 [4]; 270.20 [1] [b]; People v Scott, 16 NY3d 589, 595 [2011]; People vGaines, 258 AD2d 921, 921 [1999], lv denied 93 NY2d 899 [1999]).Moreover, to the extent that defendant contends that County Court further erred byfailing to make an inquiry of the juror himself prior to his discharge, he failed to preservesaid contention by requesting that such an inquiry be conducted (see CPL 470.05[2]; People v Hicks, 6NY3d 737, 739 [2005]; People v Reichel, 110 AD3d 1356, 1358 n 5 [2013], lvdenied 22 NY3d 1090 [2014]). In any event, the failure to conduct such an inquirydid not constitute an abuse of discretion under the circumstances, as any potentialquestioning of the juror, by County Court and/or counsel, had the distinct potential ofinfringing upon his Fifth Amendment right against self-incrimination (see CPL270.15 [4]; People v Scott, 16 NY3d at 595).
Defendant next argues that his convictions for manslaughter in the second degreeand assault in the second degree are not supported by legally sufficient evidence and thatall of his convictions are against the weight of the evidence. Specifically, defendantcontends that there was insufficient evidence that defendant acted with the requisitedegree of recklessness required to convict him of manslaughter in the second degree andassault in the second degree. When reviewing a legal sufficiency claim, "we view theevidence in the light most favorable to the People and evaluate whether there is any validline of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged" (People v Wilson, 164 AD3d1012, 1013-1014 [2018] [internal quotation marks and citations omitted]; see People v Reed, 22 NY3d530, 534 [2014]; People vPoulin, 159 AD3d 1049, 1050 [2018], lv denied 32 NY3d 940 [2018]).In contrast, when assessing the weight of the evidence, where, as here, a different verdictwould not have been unreasonable, this Court "must, like the trier of fact below, weighthe relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley,69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Danielson, 9NY3d 342, 348 [2007]; People v Peters, 126 AD3d 1029, 1031 [2015], lvdenied 25 NY3d 991 [2015]).
With respect to the charge of manslaughter in the second degree, the People wererequired to prove that defendant "recklessly cause[d] the death of another person" (PenalLaw § 125.15 [1]). With respect to the charge of assault in the seconddegree, the People were required to prove that defendant recklessly caused "seriousphysical injury to another person by means of a deadly weapon or a dangerousinstrument" (Penal Law § 120.05 [4]). In the context of both charges, "[a]person acts recklessly . . . when he [or she] is aware of and consciouslydisregards a substantial and unjustifiable risk that such result will occur or that suchcircumstance exists. The risk must be of such nature and degree that disregard thereofconstitutes a gross deviation from the standard of conduct that a reasonable person wouldobserve in the situation" (Penal Law § 15.05 [3]; see People v Jorgensen, 26NY3d 85, 90 [2015]; People v Lavalley, 158 AD3d 993, 994 [2018]; People v Crosby, 151 AD3d1184, 1186 [2017]).
The credible evidence presented at trial established that, on the day of the collision,July 25, 2016, defendant and a group of acquaintances attended "Log Bay Day," anannual event where multiple boats gather at Log Bay on Lake George. That morning,defendant and four friends boarded defendant's family boat, a 21-foot Larson, at theMarine Village Resort, bringing with them two cases of beer. Defendant then drove theboat to Chelka Lodge, where he picked up three more individuals, another case of beerand containers of "jungle juice," described as a [*4]mixture of vodka, rum, champagne and fruit juice. Prior toleaving Chelka Lodge, defendant consumed his first beer and then proceeded to LogBay, arriving sometime between 10:30 a.m. and 11:00 a.m. The group proceeded tospend the day at the event, during the course of which defendant consumed quantities ofbeer, jungle juice, concentrated cannabis and cocaine. At around 6:00 p.m., the group leftLog Bay and, with defendant's friend now driving the boat, proceeded to a nearbyrestaurant where defendant consumed two vodka cocktails with dinner. Followingdinner, defendant and four of the friends returned to the boat and, with defendant backbehind the helm, proceeded south on Lake George.
At approximately 9:20 p.m., defendant's boat, travelling in excess of the 25mile-per-hour nighttime speed limit on the lake, overtook Knarr's boat, struck it on theright side, became airborne and travelled over the top of it before returning to the water,damaging both boats and inflicting fatal injuries to Charlotte McCue and serious physicalinjuries to her mother. Defendant stopped his boat for a few moments, but, despite thescreams coming from Knarr's boat, which could be heard from his boat, he resumed hiscourse south. Rather than pilot the boat back to the Marine Village Resort where thegroup had departed from that morning and where his truck remained parked, defendantinstead pulled his boat into a slip at a closer resort. After docking, occupants ofdefendant's boat were overheard discussing whether to remove a cooler from the boatand not talking about the incident with anyone. Defendant and his passengers thenwalked to the nearby home of one of defendant's friends where they secured a ride.
In our view, when viewed in a light most favorable to the People, we find that theevidence overwhelmingly established that defendant, after a day spent ingestingquantities of alcohol and illegal drugs on the lake, decided to operate his boat, at night, inexcess of the speed limit and without proper lookouts, failed to observe Knarr's boatprior to impact and hit it, causing the death of Charlotte McCue and serious physicalinjuries to her mother. This evidence provided a valid line of reasoning and permissibleinferences from which a rational jury could conclude that defendant acted with therequisite degree of recklessness to support convictions for manslaughter in the seconddegree and assault in the second degree by disregarding the known and inherent risks ofboating at night while under the influence of drugs and alcohol (see People vBriskin, 125 AD3d at 1119-1120). With respect to defendant's weight of theevidence challenge,[FN1] while a different verdict would nothave been unreasonable, based on the aforementioned evidence, there was overwhelmingproof from which the jury could validly infer that defendant operated his boat on theevening in question while under the influence of alcohol, in a reckless manner thatendangered others, unlawfully possessed cocaine[FN2] and left the scene of a personal injuryaccident involving a death and serious physical injuries without reporting, thus, engagingin "blameworthy conduct creating or contributing to a substantial and unjustifiable riskof death" (People v Boutin, 75 NY2d 692, 696 [1990]; accord People v Gerbino, 161AD3d 1220, 1222 [2018]; see People v Newman, 26 AD3d 589, 592 [2006], lvdenied 7 NY3d 815[*5][2006]). Accordingly,viewing this evidence in a neutral light and according the appropriate deference to thejury's credibility assessments, we are satisfied that defendant's convictions were notagainst the weight of the evidence (see People v Bleakley, 69 NY2d at 495).
Nor do we find that County Court erred in precluding defendant's expert fromoffering his opinion regarding the cause and mechanism of the collision. Theadmissibility and scope of expert testimony is addressed to the sound discretion of thetrial court (see People vBedessie, 19 NY3d 147, 156 [2012]; People v Godallah, 132 AD3d 1146, 1150 [2015]), and its"determination will not be disturbed absent a showing of serious mistake, error of law orabuse of discretion" (People vCallicut, 101 AD3d 1256, 1264 [2012] [internal quotation marks and citationsomitted], lv denied 20 NY3d 1096 [2013]; see People v Page, 225 AD2d831, 833-834 [1996], lv denied 88 NY2d 883 [1996]). Here, defendant's expertwas a former employee for the Atomic Energy Commission and a 25-year agent for theFBI who, among other things, studied mathematics and physics in college, performedgraduate work in physics and had obtained his United State Coast Guard MastersLicense. He also testified to his 10-year history in the FBI's boat program, his extensiveboating experience and the fact that he had been qualified as a boating expert in threeprevious cases in which he had been called to testify. Notwithstanding, he unequivocallyacknowledged that he had no prior experience in marine accident reconstruction. Wediscern no abuse of discretion, therefore, in County Court's determination to limit histestimony to topics pertaining to his expertise in "his experience with boating and therules of the road." Moreover, despite County Court's ruling affirmatively precludingdefendant's expert from testifying as to his conclusion regarding the cause of thecollision, defense counsel was nevertheless able to extract the expert's opinion that, basedupon his review of the damage to both defendant's boat and Knarr's boat, defendant hadthe right-of-way and that the collision was the result of a "crossing situation" and not an"overtaking" as asserted by the People's expert. Accordingly, defendant's expert was notwholly precluded from answering questions relevant to the issue of causation andpresented evidence directly rebutting the conclusion of the People's expert (seePeople v Page, 225 AD2d at 834).
We also reject defendant's contention that County Court committed reversible errorin allowing the People to impeach their own witness with a prior inconsistent statementto police. "A party may impeach its own witness with a prior contradictory statementwhen the witness gives testimony upon a material issue or fact which tends to disprovethe party's position or affirmatively damages the party's case" (People v Grierson, 154 AD3d1071, 1073 [2017] [internal quotation marks, emphasis and citations omitted];see CPL 60.35 [1]). The People's witness, Michael Kenny, testified on directexamination that defendant and a group of friends showed up at his house around 10:00p.m. on the night in question and asked for a ride. Kenny testified that defendant told himthat "he had messed up," but that he did not otherwise appear to be impaired. On redirect,however, the People presented Kenny with a prior statement that he had provided topolice and elicited testimony from him acknowledging that he had previously told thepolice that defendant and his friends appeared to be "a little bit intoxicated" that night.Inasmuch as the record establishes that the People introduced Kenny's prior inconsistentstatement for the express purpose of refuting his direct testimony that defendant did notappear to be impaired—which tended to disprove the People's theory thatdefendant was intoxicated—County Court properly permitted the People to usesuch statement for impeachment purposes (see CPL 60.35 [1]; People v Berry, 27 NY3d10, 17-18 [2016]; People vHull, 125 AD3d 1099, 1101 [2015], affd 27 NY3d 1056 [2016];compare People v Grierson, 154 AD3d at 1073).
With respect to County Court's remaining evidentiary rulings at trial, we discern noabuse of discretion (see People v Carroll, 95 NY2d 375, 385 [2000]; People v Wynn, 149 AD3d1252, 1255 [2017], lv denied 29 NY3d 1136 [2017]; People v Collins, 126 AD3d1132, 1133 [2015], lv denied 25 NY3d 1161 [2015]). The challengedtestimony with respect to defendant's possession and use of marihuana and obtainingcocaine for the Log Bay Day event was relevant to the crimes for which defendant wason trial and, as such, did not constitute Molineux evidence (see People v Frumusa, 29NY3d 364, 370 [2017]). Similarly, the photographs of defendant's parked truck werenot improperly admitted, as they were relevant to the issue of defendant's allegedintoxication on the day in question (see generally People v Nelson, 27 NY3d[*6]361, 370 [2016], cert denied 580 US&mdash, 137 S Ct 175 [2016]; People v Wemette, 285 AD2d 729, 730 [2001],lv denied 97 NY2d 689 [2001]). Moreover, the challenged 911 calls wererelevant to material issues in the case, their probative value outweighed any perceivedprejudicial effect and they were properly admitted as exceptions to the hearsay doctrine(see People v Coleman, 151AD3d 1385, 1387-1388 [2017], lv denied 29 NY3d 1125 [2017]). We havereviewed defendant's remaining evidentiary claims and find that, given the strength of theevidence of defendant's guilt and the fact that there was no significant probability that thejury would have acquitted defendant had such evidence not been admitted, such claimswere either without merit or constituted harmless error (see People v Crimmins,36 NY2d 230, 242 [1975]; seealso People v Bisnauth, 149 AD3d 860, 861 [2017], lv denied 30 NY3d947 [2017]).
Finally, although defendant has no prior criminal history, given defendant's choice toconsume a toxic mix of alcohol and drugs and then operate a boat, at night, strikinganother boat, killing an eight-year-old girl and seriously injuring her mother and thenleaving the scene, we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see CPL 470.15[3] [c]; [6] [b]; People vMaricevic, 52 AD3d 1043, 1047 [2008], lv denied 11 NY3d 790[2008]). To the extent not specifically addressed, defendant's remaining contentions havebeen reviewed and found to be without merit.
Lynch, Devine, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:With respect todefendant's conviction for criminally negligent homicide, the People were required toprove that defendant caused the death of another person with criminal negligence(see Penal Law § 125.10). With respect to the two charges ofleaving the scene of an accident without reporting, the People were required to prove thatdefendant knew or should have known that serious physical injury and/or death had beencaused to another person due to the collision of the vessels and that he did not stop andprovide his information to the injured party or report same to the nearest authority(see Navigation Law § 47 [2] [a], [b] [i], [ii]). With respect toboating while ability impaired by alcohol, the People were required to prove thatdefendant operated his boat while impaired by the consumption of alcohol (seeNavigation Law § 49-a [2] [a]). With respect to reckless operation of avessel, the People were required to prove that defendant did not operate his boat in "acareful and prudent manner" (Navigation Law § 45 [1] [a]). Lastly, withrespect to criminal possession of a controlled substance in the seventh degree, the Peoplewere required to prove that defendant knowingly and unlawfully possessed a controlledsubstance (see Penal Law § 220.03).
Footnote 2:The parties stipulated attrial that, on the day of the collision, defendant knowingly and unlawfully possessedcocaine.