| People v Wager |
| 2019 NY Slip Op 04786 [173 AD3d 1352] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Edward J. Wager, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered November 9, 2016, upon a verdict convicting defendant of the crimes of vehicularmanslaughter in the first degree (two counts), vehicular manslaughter in the second degree (twocounts), aggravated driving while intoxicated and driving while intoxicated (two counts).
On June 20, 2015, Roxanne Opalka (hereinafter the victim) was killed when she was thrownfrom an all-terrain vehicle (hereinafter ATV) that defendant was allegedly operating while hewas intoxicated. Defendant was charged by indictment with two counts of vehicularmanslaughter in the first degree, two counts of vehicular manslaughter in the second degree, onecount of aggravated driving while intoxicated and two counts of driving while intoxicated. Priorto trial, defendant moved to, among other things, suppress inculpatory statements that he hadmade to law enforcement officials after the accident. After a Huntley hearing, CountyCourt denied defendant's motion, concluding that defendant was not in custody when he madethe statements. Following a jury trial, defendant was convicted as charged and sentenced toconcurrent prison terms of 5 to 15 years on each conviction of vehicular manslaughter in the firstdegree and to lesser concurrent prison terms on the other convictions. Defendant appeals.
Defendant first contends that the verdict was not supported by legally sufficient evidence andwas against the weight of the evidence. He specifically argues that there is no evidence satisfyingone of the elements of vehicular manslaughter in the first degree under Penal Law§ 125.13 (1)—operation of a motor vehicle—because an ATV is not amotor vehicle. He further argues that the evidence was legally insufficient to establish that hewas operating the ATV at the time of the accident. Defendant's legal sufficiency challenges arenot preserved for our review because defense counsel's motion for a trial order of dismissal wasnot specifically directed at these alleged errors (see People v Vega, 170 AD3d 1266, 1267 [2019]). Nevertheless,under our weight of evidence review, we must determine whether each element of the crimes forwhich defendant was convicted was proven beyond a reasonable doubt (see id.; People v Junior, 119 AD3d 1228,1229 [2014], lv denied 24 NY3d 1044 [2014]).
"When undertaking a weight of the evidence review, we must first determine whether, basedon all the credible evidence, a different finding would not have been unreasonable and thenweigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported by theweight of the evidence. When conducting this review, we consider the evidence in a neutral lightand defer to the jury's credibility assessments" (People v Vega, 170 AD3d at 1268[internal quotation marks and citations omitted]). Defendant was charged with two counts ofvehicular manslaughter in the first degree under subdivisions (1) and (3) of Penal Law§ 125.13 (counts 1 and 2). A person is guilty of vehicular manslaughter in the firstdegree under Penal Law § 125.13 (1) "when he or she commits the crime ofvehicular manslaughter in the second degree . . . while operating a motor vehicle"with a blood alcohol content (hereinafter BAC) of .18% or more by weight. We must thereforeconsider defendant's argument that an ATV is not a motor vehicle.
"Our task—as it is in every case involving statutory interpretation—is toascertain the legislative intent and construe the pertinent statutes to effectuate that intent. As theclearest indicator of legislative intent is the statutory text, the starting point in any case ofinterpretation must always be the language itself, giving effect to the plain meaning thereof. If thewords chosen have a definite meaning, which involves no absurdity or contradiction, then thereis no room for construction and courts have no right to add or take away from that meaning" (People v Roberts, 31 NY3d 406,418 [2018] [internal quotation marks, brackets and citations omitted]). "This is particularlyimportant where the definition of a crime is at issue, because courts must be scrupulous ininsuring that penal responsibility is not extended beyond the fair scope of the statutory mandate"(id. [internal quotation marks and citations omitted]).
ATVs are specifically excluded by the plain language of the relevant definition of motorvehicle. As relevant herein, the Penal Law defines "vehicle" to include a "motor vehicle," whichis further defined in the Vehicle and Traffic Law as "[e]very vehicle operated or driven upon apublic highway which is propelled by any power other than muscular power, except. . . [ATVs] as defined in [Vehicle and Traffic Law] article [48-B]" (Vehicle andTraffic Law § 125 [emphasis added]; see Penal Law § 10.00[14]). This specific exclusion of ATVs from the definition of motor vehicle is further evidentfrom two statutes that contain provisions that would be unnecessary if ATVs were included in thedefinition of motor vehicle. First, the crime of vehicular manslaughter in the second degreecontains separate provisions for incidents that arise from the operation of motor vehicles(see Penal Law § 125.12 [1]) and ATVs (see Penal Law§ 125.12 [3]) and, second, the Vehicle and Traffic Law contains a provisionspecifically providing that ATVs are motor vehicles for the purpose of Vehicle and Traffic Lawarticle 31, which prohibits the intoxicated operation of a motor vehicle (see Vehicle andTraffic Law § 2404 [5]). Thus, we are constrained to conclude that ATVs are notmotor vehicles for purposes of the Penal Law. Accordingly, the weight of the evidence does notsupport defendant's conviction for vehicular manslaughter in the first degree under Penal Law§ 125.13 (1) (count 1).[FN1]
Defendant further argues that the verdict was against the weight of the evidence because thePeople failed to prove beyond a reasonable doubt that he was operating the ATV at the time ofthe accident. Monica Snedeker, the victim's friend, testified that she and the victim made plans tomeet at Snedeker's home on the evening of the accident. When Snedeker arrived at her home atapproximately 9:00 p.m., she noticed that John Hodgson, her then-boyfriend with whom shelived, and defendant had been drinking beer. After the victim arrived, all four—namely,the victim, Snedeker, Hodgson and defendant—sat by a fire and, after each of them had abeer, they drove two ATVs to a nearby restaurant. Snedeker explained that she drove an ATVthat belonged to Hodgson with Hodgson as a passenger and that defendant drove the secondATV, which he owned, with the victim as a passenger. The four of them spent approximately onehour at the restaurant, where they drank, talked and danced, before returning to Snedeker's homeon the ATVs, again driven by Snedeker and defendant. When they arrived at Snedeker's housebefore midnight, Snedeker sat by the fire while the victim remained on defendant's ATV talkingwith defendant about a friend who could do "wheelies" on an ATV and requesting a ride. AsSnedeker advised the victim to wait until morning, defendant got on the driver's seat of his ATVwithout wearing a helmet. The victim told Snedeker not to worry and "threw her helmet off," anddefendant drove the ATV up the road with the victim riding as a passenger.
Snedeker testified that she heard the ATV traveling at a high speed for two or three minutesuntil it went silent. Snedeker said that she "had a bad feeling," so she drove her car up the road tolook for the victim and defendant. She drove past a sharp curve in the road, located near theresidence of David Winney and Teresa Winney, and proceeded approximately another milebefore turning around to return home. She testified that it was raining and dark and that, as sheapproached the Winney residence, she saw the ATV on its side in the front yard. She thennoticed defendant leaning against a pickup truck parked on that property. Snedeker testified thatdefendant did not answer when she asked him where the victim was and she could not locate thevictim. Snedeker explained that, because she did not have her cell phone with her, she stopped apassing truck to ask for help. Brett Sherman stopped and, using his cell phone, Snedeker called911. Snedeker stated that Sherman found the victim and, when he determined that the victim didnot have a pulse, he woke the Winneys. Snedeker drove back to her house to get Hodgsonbecause he knew CPR. Snedeker stated that when she and Hodgson returned to the accidentscene, Teresa Winney, who was a nurse, told them that the victim "was gone."
Snedeker's testimony was largely corroborated by Hodgson, who testified that, on the day ofthe incident, he and defendant went "[f]our-wheeling" while drinking beer. They returned toHodgson and Snedeker's home at approximately 6:00 p.m. and continued to drink beer. Hodgsonconfirmed Snedeker's account of the visit that the four made to the restaurant, and he added thateach of them consumed at least two beers there before returning home at approximately 11:00p.m. Hodgson estimated that defendant had consumed about six to eight beers throughout theday, and testified that the victim "wanted to do a wheelie challenge" and asked to drivedefendant's ATV. Hodgson stated that defendant and the victim both got on defendant's ATVwithout helmets and, with defendant driving, began doing wheelies around a pond located on theproperty. Before Hodgson went into the house to go to bed, he told defendant to park the ATVand to "stay off it," because he was concerned about the likelihood of an accident givendefendant's level of intoxication. When Hodgson last saw them, defendant was operating theATV with the victim as a passenger. Snedeker's testimony regarding events at the scene of theaccident was also corroborated by the testimony of numerous witnesses, including Hodgson, theWinneys, Sherman and several first responders.
William Kitts, a Saratoga County Deputy Sheriff, testified that he arrived at the hospital atapproximately 2:20 a.m. and interviewed defendant about the incident. Kitts testified that whenhe asked defendant how fast defendant was going on the ATV, defendant responded by stating"too fast." According to Kitts, defendant further stated that the victim had been with him "on theback" of the ATV. Defendant consented to a blood test and, during the blood draw, defendantrequested that Kitts not tell "a couple of Fulton County Sheriffs," whom defendant knew, aboutthe accident and stated, "I'm f. . .ed, I'm f. . .ed." Kitts testified thatafter receiving Miranda warnings, defendant stated—for the first time—thatthe victim was driving at the time of the accident and, when asked to reconcile that statementwith his previous inconsistent statements that he had been driving with the victim as a passenger,defendant responded by stating that, "to be honest, I don't remember."
Frank Lynch, the People's expert witness, testified that, during a rollover of an ATV, apassenger is likely to be ejected earlier than an operator and the operator "will stay with thevehicle longer because [he or she is] holding on to the handlebars." He opined that the victim wasthe passenger of the ATV based on the manner in which the victim's body impacted the parkedtruck. Lynch explained that, if the victim were the driver of the ATV, she would have ejectedlater than the passenger and would probably have landed in front of the truck. He added that thevictim's clothing supported his conclusion that she was the passenger—specifically, theback of her jeans were wet, but the front was dry, which indicated that she was sitting behind thedriver of the ATV. Defendant's expert witness, William Fisher, testified that the victim was theoperator of the ATV and that defendant was the passenger seated behind the victim. Fisheropined that several of the victim's injuries were caused by contact with the ATV and furthernoted that the wet portion on the back of the victim's jeans could be explained by her having beena passenger at some earlier time. Fisher also acknowledged that his analysis of the accident wasbased on the observation of the scene in 2016, a year after the accident occurred.
A different verdict would not have been unreasonable in light of the victim's request to drivethe ATV and Fisher's opinion that she was the operator at the time of the accident. However,viewing the evidence in a neutral light and according deference to the jury's credibilitydeterminations, we conclude that there is ample evidence to support the jury's conclusion thatdefendant was operating the vehicle at the time of the accident and, therefore, the verdict on therelevant counts was not against the weight of the evidence.[FN2]
Defendant contends that his convictions under counts 3, 4, 5, 6 and 7 must be dismissed asinclusory concurrent counts of the conviction of vehicular manslaughter in the first degree undercount 2 (see CPL 300.40 [3] [b]). "Concurrent counts are 'inclusory' when the offensecharged in one is greater than any of those charged in the others and when the latter are all lesseroffenses included within the greater" (CPL 300.30 [4]). The People concede that defendant'sconviction of vehicular manslaughter in the first degree under count 2 requires that counts 3, 4, 6and 7 be dismissed as inclusory concurrent counts. However, they accurately note that count5—charging aggravated driving while intoxicated—is not an inclusory concurrentcount of vehicular manslaughter in the first degree as charged pursuant to Penal Law§ 125.13 (3) in count 2 because it is possible to commit the latter without alsocommitting the former (see Vehicle and Traffic Law § 1192 [2-a] [a]; PenalLaw § 125.13 [1]; People vMadison, 148 AD3d 1289, 1291 [2017], lv denied 29 NY3d 1130 [2017]).
We are unpersuaded by defendant's contention that County Court erred by failing to suppressstatements that he made to Kitts while in the hospital prior to receiving Mirandawarnings. "A defendant is subjected to custodial interrogation, triggering his or her rights underMiranda, when a reasonable person innocent of any wrongdoing would have believed thathe or she was not free to leave. Factors to be taken into account in this analysis include thelocation, length and atmosphere of the questioning, whether police significantly restricteddefendant's freedom of action, the degree of defendant's cooperation, and whether the questioningwas accusatory or investigatory. A court's determination that a defendant was not in custody isaccorded great weight and will not be disturbed unless clearly erroneous" (People v Jeremiah, 147 AD3d1199, 1200 [2017] [internal quotation marks, brackets and citations omitted], lvdenied 29 NY3d 1033 [2017]).
Defendant was not handcuffed or otherwise restrained while being questioned by Kitts beforethe Miranda warnings were given to defendant. Kitts allowed medical staff to treatdefendant, and he did not coerce or threaten defendant in any way while asking investigatoryquestions. As noted by County Court, it is common knowledge that the police prepare reportsregarding motor vehicle accidents even when no criminal conduct is suspected. Under thesecircumstances, we conclude that a reasonable person innocent of any wrongdoing would not havefelt that he or she was in custody when asked questions about the accident while receivingtreatment at the hospital in the immediate aftermath of the accident and, therefore, County Courtproperly denied defendant's suppression motion (see People v Carbonaro, 134 AD3d 1543, 1547 [2015], lvdenied 27 NY3d 994 [2016]; People v Ripic, 182 AD2d 226, 235-236 [1992],appeal dismissed 81 NY2d 776 [1993]; see also People v Diallo, 137 AD3d 1681, 1681 [2016]; People v Gore, 117 AD3d 845,846 [2014], lv denied 24 NY3d 1084 [2014]).
Defendant further argues that he was deprived of a fair trial by admission of the recording ofthe initial 911 call made by Snedeker and by Kitts' testimony that the ATV was uninsured. Therecording of a 911 call that is offered for the truth of the matter asserted is hearsay, but may beadmitted under either the excited utterance or present sense impression exceptions to the hearsayrule (see People v Coleman, 151AD3d 1385, 1387 [2017], lv denied 29 NY3d 1125 [2017]). The present senseimpression hearsay exception "allows the admission of spontaneous descriptions of events madesubstantially contemporaneously with the observations if the descriptions are sufficientlycorroborated by other evidence" (Peoplev Jones, 28 NY3d 1037, 1039 [2016] [internal quotation marks, ellipsis and citationomitted]; People v Barnes, 64 AD3d890, 892 [2009], lv denied 13 NY3d 858 [2009]). In the 911 call, Snedekerspontaneously described events at the scene of the accident as they were unfolding, and herdescription was sufficiently corroborated by her direct testimony and the testimony of Sherman,David Winney and Teresa Winney. Her reference to the victim as having been the passenger wascorroborated by her direct testimony, Hodgson's testimony and the statements that defendantmade to Kitts. We further conclude that any potential prejudice to defendant from Kitts' commentthat the ATV was uninsured was ameliorated by County Court sustaining defendant's objectionand immediately providing a curative instruction directing the jury to disregard that testimony(see People v Delaney, 42 AD3d820, 822 [2007], lv denied 9 NY3d 922 [2007]; People v Garcia, 33 AD3d 1050, 1051 [2006], lv denied 9NY3d 844 [2007]).
Defendant further argues that he was deprived of the effective assistance of counsel to theextent that any of the issues that he raises on appeal were unpreserved. He concedes that heotherwise received the effective assistance of counsel by acknowledging that his trial counselmade cogent opening and closing statements, effectively cross-examined the People's witnessesand offered persuasive expert testimony. Inasmuch as we have considered the issues thatdefendant raised on appeal on their merits, his argument that he did not receive the effectiveassistance of counsel is unavailing (see People v Barnes, 64 AD3d at 893).
Lastly, we reject defendant's arguments that the sentence imposed was harsh and excessive."While the sentence imposed was greater than that offered to defendant during plea negotiations,there is nothing in the record establishing that he was punished for asserting his right to trial orthat the lengthier sentence ultimately imposed was the result of vindictiveness or retaliation" (People v Alexander, 160 AD3d1121, 1124 [2018] [citation omitted], lv denied 31 NY3d 1144 [2018]; see People v Thomas, 155 AD3d1120, 1124 [2017], lv denied 31 NY3d 1018 [2018]). Although County Courtimposed the maximum allowable prison sentence for the vehicular manslaughter conviction, wefind no abuse of discretion or extraordinary circumstances that warrant a modification ofdefendant's sentence in light of his extreme level of intoxication, his prior convictions forintoxicated driving offenses and his complete lack of remorse (see People v Olsen, 124 AD3d1084, 1087 [2015], lv denied 26 NY3d 933 [2015]; People v Warner, 9 AD3d 604,604 [2004]). Defendant's remaining arguments have been considered and found to lackmerit.
Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment is modified, onthe law and the facts, by reversing defendant's convictions of vehicular manslaughter in the firstdegree, vehicular manslaughter in the second degree and driving while intoxicated under counts1, 3, 4, 6 and 7 of the indictment; said counts dismissed and the sentences imposed thereonvacated; and, as so modified, affirmed.
Footnote 1:As the People note, thisconclusion leads to the anomalous result that a person who commits vehicular manslaughter inthe second degree while operating an ATV cannot be convicted of vehicular manslaughter in thefirst degree for conduct that would support such a conviction if he or she had been operating anautomobile, i.e., for operating the ATV with a BAC of greater than .18% or more by weight orfor causing the death of a passenger who is 15 years of age or less (see Penal Law§ 125.13 [1], [6]). In light of the clear statutory language and framework, thisconcern must be addressed to the Legislature.
Footnote 2:Based on our dismissal of count1 and our determination regarding inclusory concurrent counts (infra), we need onlyconsider whether the convictions for vehicular manslaughter in the first degree under count 2 andaggravated driving while intoxicated under count 5 were supported by the weight of the evidence.The remaining elements of both of these counts were established by the uncontroverted evidencethat defendant had a BAC of .19% at the time of the accident and, further, that he had previouslybeen convicted for driving while intoxicated within the past 10 years (see Penal Law§§ 125.12 [3]; 125.13 [3]; Vehicle and Traffic Law § 1192 [2-a][a]).