| People v Cole |
| 2019 NY Slip Op 08452 [177 AD3d 1096] |
| November 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John W. Cole, Appellant. |
Bracewell LLP, New York City (Paul Shechtman of counsel), for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J.P. Appeal from a judgment of the County Court of Saratoga County(Murphy III, J.), rendered May 11, 2018, upon a verdict convicting defendant of thecrimes of assault in the second degree, driving while ability impaired and recklessdriving.
In August 2017, defendant was charged in a four-count indictment with crimesrelated to a single car, late night accident on March 11, 2017, during which defendantcrashed the vehicle he was driving and a rear-seat passenger was seriously injured.Following a jury trial, defendant was convicted of assault in the second degree based ona theory of recklessness, driving while ability impaired and reckless driving, butacquitted on a charge of vehicular assault in the second degree. He was sentenced to aprison term of seven years with three years of postrelease supervision on the assaultconviction, to run concurrently with 15 and 30-day jail sentences on the lesserconvictions. Defendant appeals.
Defendant maintains that the verdict convicting him of assault in the second degreewas against the weight of the evidence. We disagree. Where, as here, an acquittal wouldnot have been unreasonable given the differing witness accounts of the events leading upto the accident, our role is to view the evidence in a neutral light and weigh theconflicting testimony, assess the rational inferences to be drawn from that testimony anddetermine whether the jury was justified in finding that the elements of the crime wereproven beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Brinkley, 174 AD3d1159, 1160 [2019]). In making this assessment, "[g]reat deference is accorded to thefact-finder's opportunity to view the witnesses, hear the testimony and observedemeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Race, 78 AD3d1217, 1219 [2010], lv denied 16 NY3d 835 [2011]). For a conviction ofassault in the second degree, the People must prove that the defendant "recklesslycause[d] serious physical injury to another person by means of . . . adangerous instrument" (Penal Law § 120.05 [4]). In the assault context, aperson acts recklessly when "he [or she] is aware of and consciously disregards asubstantial and unjustifiable risk" of harming another person (Penal Law§ 15.05 [3]). "The risk must be of such nature and degree that disregardthereof constitutes a gross deviation from the standard of conduct that a reasonableperson would observe in the situation" (Penal Law § 15.05 [3]). Seriousphysical injury is defined as "physical injury which creates a substantial risk of death, orwhich causes death or serious and protracted disfigurement, protracted impairment ofhealth or protracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]). Further, a vehicle is a dangerous instrument (seePenal Law § 10.00 [13]).
After an evening out with several couples during which the group had dinner andwent to see a band at a bar, defendant and his wife left the bar around midnight to returnhome with Deanna Shapiro and Scott Shapiro. Defendant was driving, his wife was inthe passenger seat and the Shapiros were riding in the back seat of the car. Scott Shapiro(hereinafter Shapiro) testified that he asked defendant if he was okay to drive, anddefendant "indicated that he was fine to drive and that he had been drinking water for theprevious hour." Shapiro testified that he saw defendant with alcoholic drinks during theevening and that he could "say with certainty that at no point did I see him without adrink." For his part, Shapiro testified that he had about five or six drinks, and thought hiswife "had close to the same." According to Shapiro, after turning off Route 9 ontoSitterly Road in the Town of Halfmoon, Saratoga County, defendant "basically justfloored the vehicle, just opened it up to see how fast [the car] could go," adding that it"[f]elt like [defendant] just accelerated as fast as he could accelerate." According toShapiro, he and his wife both asked defendant to slow down and defendant respondedwith words "to the effect of [d]on't tell me what to do or [s]hut up woman"—acomment apparently directed at defendant's wife. Shapiro continued that "[i]t actually feltlike [defendant] accelerated further after his response and it was almost immediately hehad lost control of the vehicle." Deanna Shapiro sustained injuries during the accidentthat have left her paralyzed from the neck down. Shapiro acknowledged during histestimony that he and his wife retained civil counsel prior to the grand jury proceedings.Before he retained counsel, Shapiro had told the police that defendant "was drivingpretty fast and began to swerve" without mentioning any warnings to slow down. Shapiroconceded that he may have text-messaged defendant the morning of the accident "not tobeat himself up." For her part, Deanna Shapiro gave a similar account of the events onSitterly Road, asking defendant to "please slow down you're going too fast." Sheacknowledged that she was not wearing a seat belt.
David Ennist, a State Trooper, responded to the accident scene. Ennist testified thathe did not believe defendant's explanation that he lost control trying to avoid aconstruction sign in the road, and observed that defendant had "an odor of alcoholicbeverages" and "bloodshot glassy eyes." After defendant failed four field sobriety tests,he refused to take a chemical blood alcohol content test. Defendant was placed underarrest and, upon being read his Miranda rights, he initially said that he had two tothree beers, but later admitted that he had four or five beers over the course of theevening. In contrast, Shapiro testified that he purchased a vodka drink for defendant.
According to Ennist, the vehicle initially went off the south side of the road, "sheeredoff a fire hydrant" and then crossed back over both lanes over the north shoulder into aconstruction area where it "appeared to have hit [a] tree." State Trooper Michael Mengesgave a similar description of the accident, adding that the vehicle came to rest in someconstruction debris. Menges also smelled alcohol on defendant's breath. Jeremy Shultis, aState Police investigator specializing in accident reconstruction, explained that therewere no mechanical issues with the car, there were no markings to indicate thatdefendant braked during the accident and that defendant was going 58 to 78 miles perhour. The speed limit was 40 miles per hour and there were road signs warning of a"curve ahead" where the accident occurred. An independent consultant, Brian Chase,reiterated that the vehicle's mechanical systems were intact but that no braking occurredand that "the accelerator pedal [was] at 99 to 100 percent." On cross-examination, Chaseagreed that the vehicle, a 2015 BMW 650i, was a "very sophisticated andhigh-performance vehicle" capable of cornering a curve "better than some othervehicles."
In defense, multiple witnesses who were present during the evening's events testifiedas to defendant's sobriety. Defendant's wife, Regina Cole, also testified that defendantwas drinking nonalcoholic beverages. In describing the events on Sitterly Road, Coletestified that "it was very windy, [and] something had blown towards the car. . . windshield" on the passenger side. She thought "it may be a sign thatwas blowing, because there was a construction site and there were many signs all overand cones"—an explanation consistent with defendant's statement to Ennist. Atthat point, she screamed defendant's name in "panic" and he swerved the car "striking thefire hydrant, and the vehicle came to a stop" at the construction site near the tree. Coletestified that no one told defendant to slow down and that defendant did not tell her toshut up. Brad Silver, a motor vehicle accident reconstructionist, testified that the vehicledid not hit a tree and the passenger side damage was consistent with an object strikingthe vehicle before it first left the road. Silver also opined that the vehicle was capable ofnavigating the curve at the speed it was traveling. Deferring to the jury's credibilitydeterminations, which would allow the jury to justifiably conclude that defendant'sability to drive was impaired by alcohol, that he disregarded warnings to slow down andthat he lost control while driving at an excessive speed without braking, we conclude thatthe verdict as to the assault conviction was not against the weight of the evidence (see People v Crosby, 151AD3d 1184, 1188 [2017]; People v Carrington, 30 AD3d 175, 176 [2006], lvdenied 7 NY3d 846 [2006]; People v Grenier, 250 AD2d 874, 877 [1998],lv denied 92 NY2d 898 [1998]; People v Acton, 149 AD2d 839, 841[1989]).
Defendant maintains that County Court abused its discretion in its Sandovalruling because it allowed the People to cross-examine him for impeachment purposesabout a 1991 burglary conviction and the ruling "kept him off the witness stand." Adefendant who chooses to testify may be questioned about a prior conviction pertinent tothe issue of credibility (see People v Sandoval, 34 NY2d 371, 376 [1974]). Thereis no dispute that trial courts have broad discretion "as to which prior convictions. . . can be inquired about and the extent of such inquiry" (People v Adams, 39 AD3d1081, 1082 [2007], lv denied 9 NY3d 872 [2007]). Moreover, there is, asdefendant concedes in his brief, no bright line or per se rule requiring preclusion of aprior conviction based on the age or remoteness of the conviction (see People vGray, 84 NY2d 709, 712 [1995]). That said, remoteness is a factor to be consideredin the balancing process required under Sandoval, where the Court of Appealsexplained that "[l]apse of time . . . will affect the materiality if not therelevance of previous conduct. The commission of an act of impulsive violence,particularly if remote in time, will seldom have any logical bearing on the defendant'scredibility, veracity or honesty at the time of trial" (People v Sandoval, 34 NY2dat 376-377). Also significant is whether allowing evidence of a prior conviction wouldcompromise a defendant's right to a fair trial by deterring the defendant from taking thestand, leaving the jury without significant material evidence (id. at 376,378).
Here, the People sought to impeach defendant with eight prior convictions during theperiod from 1987 to 1991, including a 1991 burglary conviction for which defendant wasincarcerated until 1995 and released from parole in 1998. Defendant has had noconvictions since that time up to the present event. In fashioning a compromise, CountyCourt determined that the People could inquire of defendant whether he had beenconvicted of one felony level offense in 1991, without further detail. In explaining itsruling, the court noted that "defendant spent a substantial portion of the time [after the1991 conviction] in a state prison facility."
In gauging whether a conviction is too remote, courts often consider the period oftime during which the defendant was incarcerated, as County Court did here. Forinstance, in People v Wright(38 AD3d 1004 [2007], lv denied 9 NY3d 853 [2007]), this Court allowedinquiry about 20-year-old rape and robbery convictions where the defendant had beenreleased from prison "only nine months prior to the present offense" (id. at1005-1006; see also People vWilson, 78 AD3d 1213, 1215-1216 [2010] [conviction more than 10 yearsearlier where the defendant was incarcerated for an extensive period of time], lvdenied 16 NY3d 747 [2011]; People v Tarver, 292 AD2d 110, 116-117[2002] [20-year-old conviction where the defendant was incarcerated for an extensiveperiod after the conviction], lv denied 98 NY2d 702 [2002]; People vTeen, 200 AD2d 785, 786 [1994] [12-year-old conviction where the defendant wasincarcerated for a portion of those years], lv denied 83 NY2d 859 [1994];People v Ortiz, 156 AD2d 197, 198 [1989] [16-year-old conviction where thedefendant spent eight years in prison], lv denied 76 NY2d 740 [1990]).
By comparison, here, defendant had been released from prison for 23 years, with anunblemished record leading up to this event. Under these circumstances, we concludethat County Court abused its discretion in allowing inquiry into the 1991 conviction,which was simply too remote (see People v Caviness, 38 NY2d 227, 233 [1975];People v Contreras, 108 AD2d 627, 628 [1985]; People v McKay, 101AD2d 960, 961 [1984]). That said, a Sandoval determination is subject toharmless error analysis (seePeople v Grant, 7 NY3d 421, 424 [2006]; People v McKay, 101 AD2dat 961). Under a nonconstitutional harmless error standard, the error is deemed harmlesswhen the proof of guilt is overwhelming and there was no significant probability that thejury would have acquitted the defendant but for the error (id.). Notably,"[h]armless error analysis does not involve speculation as to whether a defendant wouldhave testified if the legal error had not occurred" (People v Williams, 56 NY2d236, 240 [1982]). As recited above, there was differing testimony between the Shapirosand defendant's wife as to what was said in the moments leading up to the accident.Given the explanation by defendant's wife that defendant had been drinking water forhours and "was definitely fine to drive," that no one cautioned defendant to slow downand that something struck the passenger side of the vehicle triggering the accident, wecannot say that the jury was deprived of significant material evidence as to the happeningof the accident by defendant's decision not to testify (see People v Sandoval, 34NY2d at 376, 378). Moreover, multiple witnesses testified as to defendant's assertedsobriety. As such, we find no significant probability that the jury would have acquitteddefendant but for the error, and conclude that the court's Sandoval rulingconstituted harmless error.
We are unpersuaded by defendant's contention that County Court improperly limiteddefense counsel's summation with respect to the Shapiros' intent to pursue a civil actionagainst defendant. During cross-examination, Shapiro testified that he and his wife hadretained counsel with respect to a potential civil lawsuit. An objection was made and,during a brief colloquy outside the jury's presence, the court explained that reference to acivil suit was acceptable but cautioned counsel not to "get into any insurance numbers,settlement . . . any other money issue." Despite that instruction, defensecounsel next inquired whether the Shapiros "obtained an attorney in an attempt to recoupmonetary damages," to which Shapiro replied, without objection, that "[w]e're facingsignificant life-long expenses as far as monetary damages." Defense counsel thenclarified, consistent with the court's ruling, that "[m]y question to you is whether or notyou have retained counsel," to which Shapiro responded affirmatively.
With this backdrop, defense counsel addressed the credibility of the Shapiros duringsummation, stating, "You know that lawyers have been involved for recovery purposes,recovery of money." County Court sustained the People's prompt objection, directing thejury to disregard the comment and instructing, "You may not consider recovery issues inyour deliberations." Consistent with the court's instructions, that ruling did not precludedefense counsel from commenting on the fact that the Shapiros had retained counsel forpurposes of a civil action, but only to steer clear of commenting on the potentialmonetary recovery. Moreover, defense counsel fully explored during thecross-examination of Shapiro and summation the differences between Shapiro'sstatements made shortly after the accident and the statements and testimony made afterthe Shapiros contacted civil counsel (see People v Savastano, 280 AD2d 498,498 [2001], lv denied 96 NY2d 867 [2001]; compare People v Stein, 10 AD3d 406, 406-407 [2004],lv denied 4 NY3d 768 [2005]; People v Schneider, 47 AD2d 864, 864[1975]).
Finally, defendant's contention that the sentence is harsh and excessive is unavailing.Although County Court imposed the maximum sentence for assault in the second degree(see Penal Law § 70.00 [2] [d]), we discern neither an abuse ofdiscretion nor extraordinary circumstances warranting a reduction in the interest ofjustice (see People v Zi HeWu, 161 AD3d 1396, 1398 [2018], lv denied 32 NY3d 943[2018]).
Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Saratoga County for further proceedings pursuantto CPL 460.50 (5).