| People v Tromans |
| 2019 NY Slip Op 08454 [177 AD3d 1103] |
| November 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Brian R. Tromans, Appellant. |
Kindlon Law Firm, Albany (Lee C. Kindlon of counsel), for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (McDonough, J.),rendered February 9, 2018 in Albany County, upon a verdict convicting defendant of thecrimes of leaving the scene of an incident without reporting and tampering with physicalevidence.
At approximately 4:30 a.m. on a lightly snowing January morning, defendant drovehis vehicle into the victim, killing him almost instantly, then drove home. Defendantfailed to report the incident, claiming that he believed he had struck a deer. Hesubsequently parked the vehicle at his parents' house while waiting for replacement carparts. At a trial related to this incident, Supreme Court dismissed a charge of criminallynegligent homicide, but the jury convicted defendant of leaving the scene of an incidentwithout reporting and tampering with physical evidence. The court sentenced defendantto consecutive prison terms of 2
To determine whether a verdict is against the weight of the evidence, this Court mustfirst "decide whether, based on all the credible evidence, a different finding would nothave been unreasonable," and then, viewing the evidence in a neutral light and deferringto the jury's credibility assessments, "weigh the relative probative force of [the]conflicting testimony and the relative strength of [the] conflicting inferences that may bedrawn from the testimony" (People v Nunes, 168 AD3d 1187, 1188 [2019] [internalquotation marks and citations omitted], lv denied 33 NY3d 979 [2019]).Regarding the conviction of leaving the scene of an incident without reporting, defendantacknowledges that the evidence established that he was operating a motor vehicle thatstruck and killed the victim, and that defendant did not report the incident to the police.The only element he challenges is whether he knew or had "cause to know that personalinjury has been caused to another person," so as to trigger his responsibility to report theincident (Vehicle and Traffic Law § 600 [2] [a]).
Defendant testified that the area was not well lit, intermittent snow squalls affectedvisibility, and he was paying attention to the road ahead of him and was not distractedwhen he saw a flash out of the corner of his eye and heard a bump. He then stopped andlooked in his mirrors and out each window but saw nothing except a dent in his hood. Hedid not get out of the vehicle to look at the damage or for what he had hit, or even shifthis vehicle into park. Based on his prior experience having hit a deer, he assumed that heclipped a deer, which then ran back into the woods.
Several witnesses testified that the area was well lit by street lights, including oneabove the spot where the impact occurred. Testimony of witnesses who were in the areawithin minutes, as well as video from a business approximately one mile away,demonstrated that only light flurries were in the air and they did not greatly affectvisibility. Physical evidence demonstrated that defendant's headlights were working well,the road was flat and straight with no obstructions, and the victim was wearing a redfleece jacket and standing or walking slowly in the road at the time of the incident. Anofficer trained in accident reconstruction testified that defendant would have had 585 feetof visibility before the impact and, if defendant was traveling 38 miles per hour in the 40mile-per-hour speed zone, defendant would have seen the impact zone for approximately10 seconds and the victim would have taken a minimum of five seconds to walk from theside of the road to the impact zone in defendant's lane of travel.
The damage to defendant's grill and hood indicated that the victim was standing andwas hit in the middle of the vehicle. The headlights and side panels had no damage,contradicting defendant's assertion that he clipped an animal coming from the side.Additionally, the trained officers testified that the damage from a deer would be wider.Dents in the hood indicated that the victim's body hit in the center, then his head hitcloser to the windshield, directly in front of where defendant was sitting. Further,defendant separately told a police officer and a family friend that he had hit a deer in atown in a neighboring county, not the location where the victim was hit. Despitedefendant's testimony that these witnesses were mistaken and that he did not make such astatement, it seems unlikely that two unrelated witnesses would mistakenly hear the samething from defendant. Although it would not have been unreasonable for the jury toreach another conclusion, especially if they believed defendant's testimony, whenviewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, the weight of the evidence supports the conviction for leaving the sceneof an incident without reporting (see People v Lentini, 163 AD3d 1052, 1053-1054 [2018];People v Williams, 150AD3d 902, 902-903, 905 [2017], lv denied 29 NY3d 1038 [2017];People v Lewis, 162 AD2d 760, 764 [1990], lv denied 76 NY2d 894[1990]).
As relevant to the charge of tampering with physical evidence, the People had toprove that defendant, "[b]elieving that certain physical evidence [was] about to beproduced or used in an official proceeding or a prospective official proceeding, andintending to prevent such production or use, . . . suppresse[d] it by any actof concealment, alteration or destruction" (Penal Law § 215.40 [2]). A fewhours after the incident, defendant called a family friend who ran an automotive supplybusiness and asked him for quotes on parts to repair his vehicle. Defendant and his fatherhad previously worked on vehicles, and defendant intended to do so again to savemoney. Early that afternoon, defendant drove his vehicle from his home in the City ofAlbany to the friend's house, approximately half an hour away. The friend looked at thevehicle and opined that defendant needed a new hood and grill, but also some internalparts that were broken and could affect the coolant system and air intake. In defendant'spresence, the friend wrote down defendant's vehicle identification number to assure thathe ordered the correct parts for that vehicle. The friend testified that he cautioneddefendant not to drive the vehicle until the internal parts were fixed, and that defendantwanted him to order the external parts but "[n]ot to worry" about the internal parts.Defendant then drove his vehicle to his parents' rural home, just down the road from thefriend. Defendant left the vehicle there, by the garage where he and his father work onvehicles, and borrowed his father's truck to use until defendant's vehicle was repaired.Defendant's father later moved the vehicle next to the garage, where he normally parkedhis truck. The next day, the friend obtained quotes on all the parts, including the internalparts, and defendant asked him to order them all. The friend expected the parts to arrivewithin four days, but defendant's father later asked him to cancel the order. Computerevidence and defendant's testimony established that he located some parts, including thehood, online for a lower price and decided to purchase them directly himself; the hoodwas not scheduled to be delivered until approximately two weeks after the incident.Police officers located a box of broken pieces from the vehicle in the parents' garage;defendant testified that he kept them in case any clips or attachments were needed to dothe repairs.
It would not be unreasonable for the jury to have reached a different result on thischarge. Although it could be inferred that defendant believed that the vehicle or itsdamaged parts would be produced in an official proceeding against him, the evidence didnot prove beyond a reasonable doubt that he suppressed the vehicle or its damage byconcealment, alteration or destruction with the intent to prevent such production.Defendant did not hide or throw away the box of broken parts, which would havedestroyed or concealed them, but left them near the vehicle. When bringing the damagedvehicle to show it to the friend who could order new parts, defendant drove on busypublic highways during daylight hours. Defendant did not put the vehicle inside theparents' three-bay garage or cover it in any way. The People assert that defendant movedthe vehicle from his home in a city to a more rural area to conceal it. Yet an equallylogical explanation for that move would be that defendant traveled to see thefriend—who lived down the road from defendant's parents—and receivedadvice from the friend not to drive the vehicle in its current condition. If defendantaccepted this advice, it would be logical that he would drive the short distance to hisparents' property, ask to borrow one of their vehicles and leave his vehicle there until itwas repaired. Although some people may attempt to repair a vehicle themselves in aneffort to avoid detection, defendant testified that he and his father like to work on cars,had ordered parts through the friend to fix his sister's car and had previously fixed one ofdefendant's prior vehicles themselves after he had hit a deer.
Defendant also allowed the friend to copy the vehicle identification number and useit to obtain quotes on parts. This would be inconsistent with efforts to conceal thedamage to the vehicle; indeed, the police were led to defendant because they contactedparts dealers and discovered that the friend had sought quotes on certain parts for thismake and model of vehicle. When asked by a police officer, defendant told him wherethe vehicle was located. Defendant had not washed it, and the police were able to obtainsamples of the victim's DNA from the hood. Under the circumstances, we conclude thatthe conviction for tampering with physical evidence was against the weight of theevidence (see People vParker, 148 AD3d 1583, 1584-1585 [2017], lv denied 29 NY3d 1084[2017]; People v Bradford,118 AD3d 1254, 1257 [2014], lv denied 24 NY3d 1082 [2014]; compare People v Thompson,75 AD3d 760, 764 [2010] [conviction upheld where vehicle involved in crime inSchenectady County was driven to and placed behind a house in Oneida County, thensold to someone in New York City], lv denied 15 NY3d 896 [2010]; People v Wright, 13 AD3d736, 738 [2004] [conviction upheld where repairs to boat involved in crash were"hastily done"], lv denied 4 NY3d 837 [2005]; People v Cardenas, 239AD2d 594, 594-595 [1997] [conviction upheld where driver who hit two pedestrians"admittedly attempted to clean blood evidence off his vehicle, and removed the vehicle'slicense plates"], lv denied 90 NY2d 902 [1997]).
Defendant failed to preserve his challenges to most of the evidence that he nowargues was unduly prejudicial, so we will not address those unpreserved arguments. Hedid object to testimony by a police sergeant that the police had prior interactions dealingwith defendant, some of which were motor vehicle accidents. However, this passingstatement was not unduly prejudicial, as it did not imply that defendant had committed aprior offense, especially where no evidence of a prior conviction was admitted at trial (see People v Keener, 152AD3d 1073, 1075 [2017]).
Based on our dismissal of the conviction for tampering with physical evidence,defendant's argument concerning consecutive versus concurrent sentencing is academic.Though Supreme Court imposed the maximum sentence for leaving the scene of anincident without reporting, that sentence was not harsh or excessive. "A sentencingdecision is a matter committed to the exercise of the court's discretion and it can be madeonly after careful consideration of all facts available at the time of sentencing" (People v Sookram, 156 AD3d1254, 1255 [2017] [internal quotation marks, brackets, ellipsis and citationomitted]). The court was permitted to rely on defendant's lack of remorse, lack ofaccountability for his actions, and his attitude and lack of respect toward the proceedingsand the justice system—including making a joke during his testimony and rollinghis eyes while the court spoke at sentencing.
Defendant further asserts that Supreme Court improperly relied on an inaccuratepresentence investigation report (hereinafter PSI), incorrectly indicated that alcohol wasinvolved and sentenced defendant for the victim's death despite the court havingdismissed the homicide charge. A PSI must include whether defendant was under theinfluence of alcohol while committing the offense for which he or she was convicted(see 9 NYCRR 350.1 [e]; 350.7 [b] [2] [i]; see also Penal Law§ 60.27 [4] [a]). Although defendant correctly notes the lack of proof thathe was intoxicated when he left the scene of the incident, the testimony established thathe had six or seven alcoholic drinks over approximately seven hours prior to the incident.Therefore, the PSI was accurate when it noted an affirmative answer in the columnlabeled "[a]lcohol [u]sed at [o]ffense." Despite some improper and unsupportedcomments in the PSI reflecting the opinions of a police officer and the PSI's author thatdefendant may have been intoxicated, the court accurately noted that alcohol wasinvolved in this offense. Moreover, even though defendant was not convicted ofcriminally negligent homicide, the court could properly consider the victim's death as anaspect of the crime of conviction. For instance, the violent nature of the crash shouldhave made it more apparent to defendant that a person had been struck, and the fact thatdefendant left the body of a person he had killed—even if the collision and deathwere accidental—lying in the road could demonstrate defendant's lack of commondecency and respect for human life. As the record does not indicate that the court reliedupon any improper opinions or prejudicial statements in the PSI when rendering itssentence, we will not disturb the sentence for leaving the scene of an incident withoutreporting (see People vParagallo, 82 AD3d 1508, 1510 [2011]).
Garry, P.J., Devine and Aarons, JJ., concur. Ordered that the judgment is modified,on the facts, by reversing defendant's conviction of tampering with physical evidenceunder count 3 of the indictment; said count dismissed and the sentence imposed thereonvacated; and, as so modified, affirmed.