| People v Pascuzzi |
| 2019 NY Slip Op 04790 [173 AD3d 1367] |
| June 13, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyler S. Pascuzzi, Appellant. |
Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Garry, P.J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April 5,2017 in Albany County, upon a verdict convicting defendant of the crimes of manslaughter in thesecond degree (two counts) and aggravated vehicular homicide.
Shortly before midnight on July 4, 2015, defendant drove while intoxicated at an extremelyhigh speed on Interstate 90 (hereinafter I-90) in the Town of Guilderland, Albany County andcaused a collision that resulted in the deaths of his two passengers, Cody Veverka and AliciaTamboia (hereinafter collectively referred to as the victims). Defendant was charged withmultiple felonies and, after a jury trial, was convicted of manslaughter in the second degree (twocounts) and aggravated vehicular homicide. Supreme Court sentenced defendant to a prison termof 8
Initially, defendant contends that the verdict was not supported by legally sufficient evidenceand was against the weight of the evidence in that the People failed to prove that he, rather thanVeverka, was driving at the time of the collision. Defendant's legal sufficiency challenge isunpreserved for appellate review, as his motion for a trial order of dismissal was not specificallydirected at this alleged error (see Peoplev Novak, 148 AD3d 1352, 1353 [2017], lv denied 29 NY3d 1084 [2017]).Nevertheless, as an essential part of our weight of the evidence review, we must determinewhether each element of the crimes for which defendant was convicted was proven beyond areasonable doubt (see People vDanielson, 9 NY3d 342, 348-349 [2007]; People v Gill, 168 AD3d 1140, 1140 [2019]).
The testimony of the People's witnesses established that on the day of the accident, defendantthoroughly cleaned the interior and exterior of his vehicle, a blue high-performance VolkswagenGolf R32, because he intended to sell it the next day. That evening, defendant and his roommatesheld a party at their apartment in Schenectady County. The victims were among the guests, andmost of the attendees, including defendant, were drinking. The group went to a fireworks displayat about 9:00 p.m. and then returned to continue the party. Later, defendant and the victims left indefendant's vehicle; no witness noticed who was driving. One of defendant's roommates calleddefendant and learned that he and the victims were at a bar in the Town of Colonie, AlbanyCounty. The roommate testified that he asked defendant whether he was driving and defendantsaid that he was not.
The bartender who was on duty that evening, a friend of defendant, testified that he hadinvited defendant to the bar and that defendant and the victims arrived at about 10:30 p.m. andstayed for about an hour. The bartender testified that defendant and the victims each drank onebeer. Defendant paid for the drinks by credit card, signing the receipt at 11:28 p.m. The bartenderdid not see who was driving when the group left.
A witness who had left work in Albany at 11:15 p.m. or 11:20 p.m. testified that he wasdriving westbound on I-90 at about 70 miles per hour when a blue Volkswagen passed him onthe right. The Volkswagen was moving "so fast it was like [the witness] was sitting still," and hiscar shook as it passed. A short distance ahead, another driver was traveling at about 65 miles perhour when a blue car sped past. This witness smelled burning rubber and estimated that the bluecar's speed was at least 120 miles per hour. After it passed, the witness saw "a huge burst of justdust . . . and then a bunch of glass [and debris] came flying at our window." Atabout the same time, another driver, who was traveling at about 70 miles per hour, saw a car"flying by [her]" so fast that "it felt like [she] was standing still." This witness estimated the car'sspeed at over 100 miles per hour. As she watched, the car struck a green car in the center lane,causing that vehicle to spin off the road into the center median. The speeding vehicle then"clipped" the back of a tractor trailer and "spun out," with the sound of crashing metal and"sparks everywhere."
The trial evidence revealed that at approximately 11:42 p.m., the Volkswagen first struck agreen Honda in the rear, sending it off the road, and then struck the rear of a tractor trailer withsuch force that the Volkswagen was severed into two halves between the front and back seats.The Volkswagen's rear half crossed the median and the center guide rail and came to rest on theeastbound side of the highway, while the front half continued to travel westward until it enteredthe median and struck the westbound side of the center guide rail.
Defendant and Veverka were found near the front half of the Volkswagen on the western sideof the car. Veverka, whose right arm had been amputated, was lying farther to the west thandefendant. Rescuscitation was attempted, but he died at the scene. Tamboia was found on theeastbound side of the center guide rail, where the rear half of the Volkswagen had traveled. Herinjuries were so severe that rescue personnel determined that resuscitation efforts would be futile.Bystanders who assisted defendant before first responders arrived testified that he was initiallyunconscious, but that he became more responsive and was mumbling incoherently by the timerescue personnel arrived. A paramedic who performed an initial assessment testified thatdefendant stated his name and responded to some questions with the word "no."
State Trooper Heath McCrindle testified that he first assisted with resuscitation efforts forVeverka and then spoke with defendant, who had been placed on a backboard but had not yetbeen transferred into an ambulance. McCrindle asked defendant whether anyone else had been inthe vehicle, and defendant said no. McCrindle then asked whether defendant had been driving,and defendant said yes. McCrindle said that defendant appeared to be alert and conscious, andlooked at McCrindle as he spoke. Two paramedics who attended defendant in the ambulancetestified that their examination revealed lacerations on his head, left arm and left shoulder and anabrasion on the right side of his abdomen, but no apparent broken bones or signs of a significanthead injury. They testified that defendant was able to follow directions to do such things asopening his eyes and raising his arm. He did not give verbal responses to most of their questions,but did say "no" in response to several questions. When he was asked where he had been thatevening, he gave a fragmented response that included the word "fireworks."
At the hospital, State Trooper Jonathan Schroll obtained permission from a nurse to enterdefendant's room to ask for his consent to a blood sample. Defendant agreed to allow the test andsigned a consent form. Schroll said that defendant appeared to understand the request and had nodifficulty holding the pen. The blood sample was obtained at 1:07 a.m., and defendant's bloodalcohol content was later determined to be .18%. Schroll left the room and waited nearby withinvestigator David Burns until about 2:15 a.m., when medical personnel permitted them to speakwith defendant again. Burns and Schroll testified that defendant told them that he had beentraveling to his apartment before the crash, and gave them that address and his roommates'names. The troopers asked defendant if he had been driving, and defendant said yes. When askedwith whom he had been driving, defendant said he was alone. Burns asked defendant whether hehad been drinking and partying, and defendant said, "I'm pretty damn sure I was. I'm lying here.Aren't I?" The troopers were then advised that defendant needed further tests and terminated theconversation.
One of Veverka's family members testified that he accessed the photographs in Veverka'sphone after it was returned to the family, discovered that the last picture taken showed a car'sspeedometer, and turned the phone over to police. Data extracted from the phone revealed thatthis photograph had been taken just before 11:41 p.m. on the night of the crash. The photograph,which was submitted into evidence, depicted a speedometer that matched that of the Volkswagenand displayed a speed of 155 miles per hour.
State Police investigators searched the wreckage of the Volkswagen, took samples for DNAtesting and discovered a scrap of red fabric wedged into the front passenger door thatcorresponded with a tear in Veverka's red underwear. A forensic investigator testified that DNAon the fabric scrap matched that of Veverka. Veverka's DNA was also found on the frontpassenger seat, the roof over the front passenger seat, the gear shift, the steering wheel, the lightswitch and in bloodstains on the front passenger airbag and the driver's airbag. The Volkswagen'skey had a mix of Veverka's DNA and that of at least one other contributor. The only identifiableDNA from defendant found in the vehicle came from a driver's side panel in the rear of thevehicle. Hairs were collected from the roof behind the driver's seat, but the forensic investigatortestified that no hair follicles were included from which DNA could have been obtained, andtesting of one sample of the hair itself revealed no DNA. The investigator further testified thatDNA was not transferred by every contact, that a person could touch a surface and leave no DNAbehind, and that it was not possible to determine when the DNA had been transferred onto thecar's surfaces or whether anyone had touched the surfaces after the DNA was transferred.
Michael Sikirica, a physician specializing in forensic pathology and neuropathology, testifiedthat he conducted autopsies of the victims and reviewed photographs of the crash scene, witnessstatements and other documentation. He described Tamboia's devastating injuries and opined thatthe cause of her death was multiple severe traumatic blunt force injury. Over a defense objection,he further opined to a reasonable degree of medical certainty that, based upon the nature andlocation of Tamboia's injuries and the damage to the Volkswagen, she had been in the backseaton the passenger side at the time of the crash.[FN1]
Turning to Veverka's autopsy, Sikirica described injuries primarily on the right side of thebody, including abrasions on the right side of Veverka's face that were consistent with dicingmarks from fractured glass, the missing right arm, a deep laceration in his right hip in the samelocation as the previously-noted tear in his underwear and multiple internal injuries, most severeon the right side, including a displacement of the spine to the left caused by force from the right.Sikirica opined that Veverka's right arm was severed as the result of a jagged shearing injury thatoccurred when the passenger side of the Volkswagen struck the tractor trailer, and that the woundin his right hip was caused when part of the tractor trailer penetrated the car door. Over a defenseobjection, Sikirica opined to a reasonable degree of medical certainty that Veverka had beenseated in the front passenger seat when the collision with the tractor trailer occurred. Sikiricatestified that his opinion was not altered by the discovery of Veverka's DNA in the area of thedriver's seat because he did not know when the DNA had been transferred and because thephysical evidence "supersede[d]" the DNA evidence and placed Veverka "firmly in the passengerseat."
Bruce McLaughlin, who was a State Police investigator at the time of trial, a member of thecollision reconstruction unit and the lead reconstructionist for the accident,[FN2] testified that he and anothertrooper mapped and photographed the collision site on the night of the accident. McLaughlinthen spent about a year investigating and reconstructing the accident based upon such evidence astracks and scars on the pavement, the locations where the vehicles, occupants and other debriswere found, the damage to the vehicles and the occupants' injuries. Using diagrams of the crashsite, McLaughlin testified that, in his opinion, the Volkswagen first struck the Honda and thenbegan to rotate counterclockwise as it continued forward until, within less than a second, itspassenger side struck the left rear corner of the tractor trailer. McLaughlin opined that the tractortrailer's five-inch-wide underride bar penetrated the front passenger door upon this impact,corresponding with a five-inch-wide hole in the door. The Volkswagen then continued forward ata greater speed than the tractor trailer, causing the front passenger door to be pulled backwardand torn off. McLaughlin opined that Veverka's arm was severed as this occurred; he tracedbloodstains leading from the point of the collision to the location where the arm was found. Afterthe impact split the Volkswagen in two, the back half moved backward across the highway,entered the median and flipped over the center guide rail—ejectingTamboia—before coming to rest in the eastbound lane. The front half continued forwardon its wheels for 50 to 75 yards, sideswiped the tractor trailer once, entered the median, ejecteddefendant and Veverka toward the west as it dug into the ground, and came to rest against theguide rail.
As for the Volkswagen's speed, McLaughlin testified that the minimum speeds yielded by hisinitial momentum and energy analyses were, in his opinion, too slow to be consistent with theseverity of the Volkswagen's damage. McLaughlin thus consulted another expert accidentreconstructionist, obtained additional equipment and conducted further testing. He furtherperformed calculations based upon tachometer and odometer readings depicted in the photographfound in Veverka's phone and data pertaining to the Volkswagen's tires and gear ratio.McLaughlin concluded that the Volkswagen's speed was within one percent of the speed shownon the speedometer when the photograph was taken, that the photograph was takenapproximately 1.1 miles before the collision site and 26 to 28 seconds before the crash, and thatthe Volkswagen was moving between 145 and 147 miles per hour when it struck the tractortrailer.
As for the occupants' positions in the car, McLaughlin opined, as had Sikirica, that Tamboiawas in the rear passenger seat at the time of the crash. He further opined that Veverka was in thefront passenger seat, specifically noting the severity of his injuries on the right side, the fabricfound in the passenger door and the corresponding locations of the hole in the door, the tornunderwear and the wound in Veverka's right hip. By process of elimination, these determinationsplaced defendant in the driver's seat—a position that McLaughlin opined was consistentwith the physical evidence, including the location of defendant's injuries primarily on his leftside, the relative mildness of his injuries, the lack of significant damage to the driver's seat, andthe fact that defendant was found near the front half of the Volkswagen, a considerable distancefrom the back half. McLaughlin rejected the defense theory that defendant could have beenthrown from the backseat into the driver's seat between the two collisions, while Veverka wasthrown into the passenger seat, opining that such a theory was not consistent with, among otherthings, the force of the first impact, the physics of the Volkswagen's movements and thesplit-second interval between the two collisions.
Had the jury discredited the opinions of the People's experts and accepted the defense theorythat the DNA in the driver's seat area proved that Veverka was driving at the time of thecollision, a different verdict would not have been unreasonable. Accordingly, we "must, like thetrier of fact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]). Wereject defendant's argument that McCrindle's testimony regarding defendant's first admission thathe was driving was incredible in view of defendant's unresponsive condition, as the jury couldhave found McCrindle's testimony to be consistent with that of the witnesses who said thatdefendant was able to give one-word responses. We likewise reject defendant's argument that theDNA evidence conclusively established that Veverka was driving. The evidence permitted thereasonable conclusion that the absence of defendant's DNA from the driver's area was explainedby the thorough cleaning that defendant had performed earlier that day and that Veverka haddriven the vehicle during the trip from defendant's apartment to the bar or that his DNA wastransferred from the passenger side to the driver's side during the accident. In view of the experttestimony and defendant's admissions, and according the appropriate deference to the jury'scredibility determinations, we find that the verdict is supported by the weight of the evidence (see People v Hoffman, 130 AD3d1152, 1156-1157 [2015], lv denied 26 NY3d 1009 [2015]; People v Reichel, 110 AD3d 1356,1363 [2013], lv denied 22 NY3d 1090 [2014]).
Supreme Court did not err in denying defense counsel's motion to suppress defendant'sstatements to Schroll and Burns at the hospital on the ground that defendant was not givenMiranda warnings. "[T]he safeguards required by Miranda are not triggeredunless a suspect is subject to custodial interrogation[, and t]he standard for assessing a suspect'scustodial status is whether a reasonable person innocent of any wrongdoing would have believedthat he or she was not free to leave" (People v Paulman, 5 NY3d 122, 129 [2005] [internal quotationmarks and citations omitted]). "Factors to be considered include the location, length andatmosphere of the questioning, whether police significantly restricted defendant's freedom ofaction, the degree of defendant's cooperation, and whether the questioning was accusatory orinvestigatory" (People v Pagan, 97AD3d 963, 966 [2012] [citations omitted], lv denied 20 NY3d 934 [2012]). Here, theinterview took place in a medical setting rather than a police station and lasted only about fiveminutes. Schroll and Burns did not handcuff defendant or threaten him with arrest and did nottell him that he was not free to leave. There was no testimony that defendant expressed a wish toleave or reluctance to speak with them, and the nature of the questioning was investigative ratherthan accusatory. Although there was a notation on the blood-sample consent form to the effectthat defendant had been arrested for driving while intoxicated, there was no evidence that thisnotation was added before defendant signed the form or that a reasonable person would havebeen aware of it, and defendant was not, in fact, placed under arrest until several days later, uponhis release from the hospital. According the appropriate "great weight" to the court's factualdeterminations and credibility assessments (People v Muniz, 12 AD3d 937, 938 [2004]), we find no reason todisturb the determination that the interview was not custodial and, thus, that Mirandawarnings were not required (see Peoplev Carbonaro, 134 AD3d 1543, 1547 [2015], lv denied 27 NY3d 994 [2016]; People v Figueroa-Norse, 120 AD3d913, 913-914 [2014], lv denied 25 NY3d 1071 [2015]; People v Lewis, 83 AD3d 1206,1207-1208 [2011], lv denied 17 NY3d 797 [2011]).
Defendant failed to preserve his appellate contention that McLaughlin did not have thenecessary qualifications in physics, biomechanical engineering and occupancy kinematics torender an expert opinion as to the positions of the occupants of the Volkswagen, as he raised nosuch objection at trial (see People vMenendez, 50 AD3d 1061, 1061-1062 [2008], lv denied 10 NY3d 937 [2008];People v Mack, 273 AD2d 939, 939 [2000], lv denied 95 NY2d 966 [2000];People v Brown, 243 AD2d 282, 283 [1997], lv denied 91 NY2d 870 [1997]). Ifthe claim had been properly before us, we would not have found that McLaughlin lackedqualifications on this ground, as he testified that his collision reconstruction training includedover 1,700 hours of training in subjects that included applied physics, biomechanics andoccupant kinematics and, further, that he had 18 years of experience in accident reconstructionand had participated in 541 reconstructions (see People v Lashway, 112 AD3d 1222, 1223-1224 [2013]).Defendant likewise failed to preserve his claim that McLaughlin did not use accepted scientificmethodologies or mathematical calculations in concluding that defendant was in the driver's seat,as he neither objected on this ground nor showed that the methods and calculations thatMcLaughlin used were not accepted as reliable in the field of accident reconstruction (seegenerally People v Angelo, 88 NY2d 217, 223 [1996]). These contentions and defensecounsel's remaining criticisms of McLaughlin's methods, including his purported failure to giveadequate consideration to the DNA evidence, were addressed upon cross-examination and wentto the weight, rather than the admissibility, of the testimony (see People v Miller, 239AD2d 787, 788-789 [1997], affd 91 NY2d 372 [1998]).
Defendant further contends that Supreme Court erred in permitting McLaughlin to offer hisprofessional opinion on the ultimate issue of whether defendant was driving at the time of thecrash. Defendant's appellate objection on this ground is unpreserved, as he made no suchobjection when McLaughlin testified on this subject (see People v Ramsaran, 154 AD3d 1051, 1055 [2017], lvdenied 30 NY3d 1063 [2017]).[FN3] Had the issue been preserved, we would havefound no error, as an expert may give an opinion on the ultimate issue before the jury where, ashere, "it would help to clarify an issue calling for professional or technical knowledge, possessedby the expert and beyond the ken of the typical juror" (People v Rivers, 18 NY3d 222, 228 [2011] [internal quotationmarks and citation omitted]; accord People v Ramsaran, 154 AD3d at 1055; seeGuide to NY Evid rule 7.01 [3], Opinion of Expert Witness).
For similar reasons, Supreme Court properly allowed Sikirica's testimony. Defendantpreserved his claim that Sikirica lacked qualifications to opine on the locations of the vehicle'soccupants by objecting during the trial on the ground that Sikirica had no training in accidentreconstruction (see CPL 470.05 [2]). Nevertheless, the claim lacks merit. Notably,Sikirica limited his opinion to the precise time of the second collision, freely acknowledgingupon cross-examination that he could not opine as to where the occupants were seated when thefirst crash occurred, or whether their bodies moved before the second collision. He testifiedsolely as to his professional opinion on the positions of the three occupants at the moment of thesecond collision. This testimony was based upon, among other things, their injuries and thevehicle damage, and was fully within Sikirica's professional expertise regarding the mechanismof the victims' injuries and the causes of their deaths. Sikirica testified that he had conducted over10,000 autopsies, many of which involved high speed crashes. Based upon this experience andhis professional training, he was fully "possessed of the requisite skill, training, education,knowledge or experience from which it can be assumed that the information imparted or theopinion rendered is reliable" (People vWyant, 98 AD3d 1277, 1277-1278 [2012] [internal quotation marks, emphasis andcitation omitted]; see People v Paun, 269 AD2d 546, 546 [2000], lv denied 95NY2d 801 [2000]). Defendant's remaining arguments related to Sikirica's testimony areunpreserved.
Defendant next contends that Supreme Court erred in granting the People's motion in limineto preclude defendant's expert psychiatrist from testifying about the effects of intoxication andtrauma on short-term memory formation. "It is for the trial court in the first instance to determinewhen jurors are able to draw conclusions from the evidence based on their day-to-day experience,their common observation and their knowledge, and when they would be benefitted by thespecialized knowledge of an expert witness" (People v Murphy, 79 AD3d 1451, 1452 [2010] [internal quotationmarks and citations omitted], lv denied 16 NY3d 862 [2011]). Here, the court found thatthe expert's testimony would be an improper means of buttressing defendant's position that he didnot remember the accident. This view is supported by the record, as the testimony that defendantwas confused and only partially responsive after the accident permitted the jury to infer that hiscognitive abilities could have been affected. Further, the proposed testimony was "within theaverage juror's understanding, not beyond the range of ordinary knowledge or intelligence anddoes not require professional or scientific knowledge" (People v Johnston, 273 AD2d514, 517 [2000], lv denied 95 NY2d 935 [2000]; accord People v Vanderhorst, 117 AD3d 1197, 1201 [2014], lvdenied 24 NY3d 1089 [2014]). Thus, the court did not abuse its discretion in precluding thetestimony (see People v Ignatyev,147 AD3d 489, 491 [2017], lv denied 29 NY3d 1033 [2017]; People v Paro,283 AD2d 669, 670 [2001], lv denied 96 NY2d 922 [2001]).
Finally, defendant contends that Supreme Court prevented him from presenting a defense bygranting the People's objections on hearsay grounds when defense counsel sought oncross-examination to elicit testimony from defendant's roommate that, during the party, he heardVeverka express an interest in driving defendant's car. Defendant asserts that the statement wasnot hearsay and, in the alternative, that it fell within the state of mind hearsay exception (seePeople v D'Arton, 289 AD2d 711, 712-713 [2001], lv denied 97 NY2d 728 [2002];Guide to NY Evid rule 8.13 [1] [a], Declaration of Future Intent). The claim that the statementdid not constitute hearsay is without merit, as it was plainly "offered in evidence to prove thetruth of the matter asserted in the statement"—that is, that Veverka expressed a wish todrive the Volkswagen (Guide to NY Evid rule 8.00 [1], Definition of Hearsay; see People vRomero, 78 NY2d 355, 361 [1991]). Defendant's alternative contention regarding the state ofmind exception is unpreserved for appellate review, as defense counsel made no such argumentat trial (see CPL 470.05 [2]; People v Atkinson, 150 AD3d 870, 870 [2017], lv denied30 NY3d 947 [2017]; People v Esteves, 152 AD2d 406, 412 [1989], lv denied 75NY2d 918 [1990]).
Egan Jr., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Upon appeal, defendant does notdispute that Tamboia was seated in this position.
Footnote 2:McLaughlin had retired by thetime of the trial.
Footnote 3:Defense counsel objected tosome of the prosecutor's multiple questions about the position of the vehicle's occupants onfoundational grounds, but did not object to other questions and never asserted that any of thequestions improperly usurped the jury function.