| People v Ferguson |
| 2021 NY Slip Op 02563 [193 AD3d 1253] |
| April 29, 2021 |
| Appellate Division, Third Department |
[*1](April 29, 2021)
| The People of the State of New York,Respondent, v Edward Ferguson, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Clark, J. Appeals (1) from a judgment of the County Court of Rensselaer County (Young, J.),rendered April 17, 2017, upon a verdict convicting defendant of the crimes of aggravatedvehicular homicide (two counts), vehicular manslaughter in the first degree, aggravated vehicularassault, vehicular assault in the first degree, manslaughter in the second degree, assault in thethird degree, reckless driving and driving while intoxicated (two counts), and the trafficinfractions of failure to yield and moving from lane unsafely, and (2) by permission, from anorder of said court, entered May 12, 2020, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment of conviction, without a hearing.
In January 2016, defendant was charged by indictment with various crimes and trafficinfractions based upon allegations that, on an afternoon in July 2015, he operated a motor vehiclewhile intoxicated and made a left-hand turn in front of an oncoming vehicle, thereby causing acollision and the death of one of his passengers, as well as serious physical injuries to the driverof the oncoming vehicle. Following a jury trial, defendant was convicted of aggravated vehicularhomicide (two counts), vehicular manslaughter in the first degree, aggravated vehicular assault,vehicular assault in the first degree, manslaughter in the second degree, assault in the thirddegree, reckless driving, driving while intoxicated (two counts), failure to yield and moving fromlane unsafely. County Court sentenced defendant to various concurrent prison terms, the longestof which was 8
Defendant argues that his convictions for aggravated vehicular homicide, vehicularmanslaughter in the first degree, aggravated vehicular assault and vehicular assault in the firstdegree are not supported by legally sufficient evidence and are against the weight of theevidence. Specifically, he asserts that the evidence failed to establish that he engaged in recklessdriving, as is required for aggravated vehicular homicide and aggravated vehicular assault(see Penal Law §§ 125.14, 120.04-a), or that, as a result ofintoxication, he operated a motor vehicle in a manner that caused the death of his passenger andserious physical injury to the driver of the oncoming vehicle. Upon review of the evidence, wefind defendant's contentions to be unpersuasive.
"When assessing the legal sufficiency of a jury verdict, we view the facts in the light mostfavorable to the People and examine whether 'there is a valid line of reasoning and permissibleinferences from which a rational jury could have found the elements of the crime proved beyonda reasonable doubt' " (People vLendof[*2]-Gonzalez, 36 NY3d 87, 91-92 [2020],quoting People v Danielson, 9NY3d 342, 349 [2007]). In a weight of the evidence analysis, we view the evidence in aneutral light and determine whether a different verdict would have been unreasonable; if adifferent verdict would not have been unreasonable, we weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony to determine if the verdict is supported by the weight of the evidence (see People v Henry, 173 AD3d1470, 1473 [2019], lv denied 34 NY3d 932 [2019]; People v Peryea, 68 AD3d 1144,1146-1147 [2009], lv denied 14 NY3d 804 [2010]).
To convict defendant of the two counts of aggravated vehicular homicide charged in counts 1and 5 of the indictment,[FN*] the People had to demonstrate that defendantengaged in reckless driving, as that term is defined in Vehicle and Traffic Law§ 1212, that he committed vehicular manslaughter in the second degree (seePenal Law § 125.12), that he had been convicted of violating Vehicle and TrafficLaw § 1192 within the preceding 10 years and that he caused the death of oneperson and the serious physical injury of another (see Penal Law § 125.14[3], [5]). As for defendant's conviction of vehicular manslaughter in the first degree under count7 of the indictment, the People had to establish that defendant committed vehicular manslaughterin the second degree and that he had been convicted of violating Vehicle and Traffic Law§ 1192 within the preceding 10 years (see Penal Law § 125.13[3]). As pertinent here, a defendant commits vehicular manslaughter in the second degree whenhe or she operates a motor vehicle in an intoxicated condition and/or with a blood alcoholcontent of .08 of 1% or more in violation of Vehicle and Traffic Law § 1192 (2) or(3) and, as a result of such intoxication, operates the vehicle "in a manner that causes the deathof" another person (Penal Law § 125.12 [1]).
Additionally, defendant's conviction for aggravated vehicular assault under count 8 of theindictment required proof that he engaged in reckless driving, that he committed vehicularassault in the second degree and that he had been convicted of violating Vehicle and Traffic Law§ 1192 within the preceding 10 years (see Penal Law§ 120.04-a [3]). For defendant's conviction of vehicular assault in the first degreeunder count 9 of the indictment, the People had to prove that defendant committed vehicularassault in the second degree and that he had been convicted of violating Vehicle and Traffic Law§ 1192 within the preceding 10 years (see Penal Law § 120.04[3]). As applicable here, "[a] person is guilty of vehicular assault in the second degree when he orshe causes serious physical injury to another person, and . . . operates a motorvehicle" with a blood alcohol content of .08 of 1% or more and/or in an intoxicated condition inviolation of Vehicle and Traffic Law § 1192 (2) or (3) "and [*3]as a result of such intoxication . . . operates such motorvehicle . . . in a manner that causes such serious physical injury to such otherperson" (Penal Law § 120.03 [1]). As is relevant to counts 1, 5 and 8 of theindictment, reckless driving is defined as "driving . . . any motor vehicle. . . in a manner which unreasonably interferes with the free and proper use of thepublic highway" (Vehicle and Traffic Law § 1212).
Prior to trial, the People presented a special information demonstrating that, within thepreceding 10 years, defendant had been twice convicted of driving while ability impaired inviolation of Vehicle and Traffic Law § 1192 (1); defendant acknowledged andadmitted those prior convictions. At trial, the People presented overwhelming evidenceestablishing that defendant was the driver of the vehicle that caused the accident. Specifically,numerous witnesses testified to either observing defendant in the driver's seat or watching himemerge from the driver's seat of the vehicle after the collision. Additionally, law enforcementofficers and medical personnel testified to statements that defendant made after the accident, inwhich defendant acknowledged or indicated that he had been the driver of the vehicle. ThePeople further introduced evidence demonstrating that DNA taken from the driver's seat belt andairbag matched that of defendant.
The People also presented ample evidence to conclude that defendant was intoxicated at thetime of the collision. Defendant's surviving passenger testified that defendant had consumedalcohol prior to driving and numerous witnesses who spoke with defendant in the aftermath ofthe collision testified to smelling the odor of alcohol on defendant's breath and observing othersigns of intoxication, such as incoherent and slurred speech, impaired motor condition and glassyeyes. Additionally, a state trooper who responded to the accident testified that he administered afield sobriety test to defendant and that defendant failed the test. The evidence further establishedthat defendant's blood was drawn roughly four hours after the accident pursuant to a court orderand that defendant had a blood alcohol content of .14 of 1% at that time.
With regard to the collision itself, the People presented the testimony of several eyewitnessesto the collision, as well as an investigator who performed a collision reconstruction. MelanieAndrews, an eyewitness, testified that she was driving home from work when she observeddefendant's vehicle pull onto the road behind her and follow her for a few miles. She stated thatdefendant's vehicle was tailgating her and that she observed defendant "driving sort of erraticallyback and forth between the white and yellow line[s]," at times crossing over the white line. Shestated that she ultimately observed defendant "crank" the wheel and make an abrupt left-handturn into oncoming traffic. Defendant's surviving passenger stated that, prior to making the [*4]turn, defendant let his foot off of the gas pedal, but did not applythe brakes. The driver of the oncoming vehicle asserted that defendant's left-hand turn was sosudden that he did not have time to hit the brakes. The investigator who performed the collisionreconstruction testified that, based upon his investigation, he was able to determine thatdefendant took the left-hand turn at 42 miles per hour and that the oncoming vehicle wastraveling at a rate of 55 miles per hour.
Contrary to defendant's contentions, Andrews' testimony regarding defendant's erraticdriving, together with the evidence of defendant's intoxication and blood alcohol content hoursafter the collision, the speed at which defendant made the left-hand turn without braking anddefendant's failure to yield to oncoming traffic provided a valid line of reasoning and permissibleinferences from which the jury could conclude that defendant engaged in reckless driving and, asa result of intoxication, operated the vehicle in manner that caused the death of his passenger andserious physical injury to the driver of the oncoming vehicle (see Vehicle and TrafficLaw § 1212; Penal Law §§ 120.03 [1]; 125.12 [1]; People v Hoffman, 130 AD3d1152, 1155-1156 [2015], lv denied 26 NY3d 1009 [2015]; People v Goldblatt, 98 AD3d 817,819-820 [2012], lv denied 20 NY3d 932 [2012]; cf. People v Caden N., 189 AD3d 84, 91-95 [2020], lvdenied 36 NY3d 1050 [2021]). Upon consideration of the same evidence, as well as theoverwhelming proof that defendant was operating the motor vehicle at the time of the collision,we find that it would have been unreasonable for the jury to have acquitted defendant ofaggravated vehicular homicide, vehicular manslaughter in the first degree, aggravated vehicularassault and vehicular assault in the first degree (compare People v Caden N., 189 AD3dat 91-95). Thus, upon review of the evidence, we find that defendant's convictions for aggravatedvehicular homicide, vehicular manslaughter in the first degree, aggravated vehicular assault andvehicular assault in the first degree are supported by legally sufficient evidence and are notagainst the weight of the evidence.
Next, as the People correctly concede, defendant's convictions for vehicular manslaughter inthe first degree, reckless driving and driving while intoxicated under counts 7, 12, 13 and 14 ofthe indictment must be dismissed as inclusory concurrent counts of his convictions foraggravated vehicular homicide (see CPL 300.30 [4]; 300.40 [3] [b]; Penal Law§§ 125.13 [3]; 125.14 [3], [5]; Vehicle and Traffic Law§§ 1212, 1192 [2], [3]; People v Williams, 150 AD3d 1273, 1279 [2017], lv denied29 NY3d 1135 [2017]). Similarly, defendant's conviction for vehicular assault in the first degreeunder count 9 of the indictment must be dismissed as an inclusory concurrent count ofaggravated vehicular assault (see CPL 300.30 [4]; 300.40 [3] [b]; Penal Law§§ 120.04 [3]; 120.04-a [3]; People v Williams, 150 AD3d [*5]at 1279).
Defendant next argues that County Court should have granted his request to charge vehicularmanslaughter in the first degree and driving while intoxicated as lesser included offenses ofaggravated vehicular homicide. "A defendant is entitled to a lesser included offense charge uponrequest when (1) 'it is impossible to commit the greater crime without concomitantly committingthe lesser offense by the same conduct' and (2) 'there [is] a reasonable view of the evidence tosupport a finding that the defendant committed the lesser offense but not the greater' "(People v Nisselbeck, 85 AD3d1206, 1208 [2011], quoting People v Van Norstrand, 85 NY2d 131, 135 [1995]; see People v Almonte, 33 NY3d1083, 1084 [2019]). Although vehicular manslaughter in the first degree under count 7 of theindictment and driving while intoxicated under count 10 of the indictment are lesser includedoffenses of aggravated vehicular homicide (see Penal Law §§ 125.12[1]; 125.13 [3]; 125.14 [3]; Vehicle and Traffic Law § 1192 [3]; People vGoldblatt, 98 AD3d at 822 n 6), there is no reasonable view of the evidence from which toconclude that defendant did not engage in reckless driving (see Vehicle and Traffic Law§ 1212) so as to support a finding that he committed vehicular manslaughter in thefirst degree and driving while intoxicated but not aggravated vehicular homicide (seePenal Law §§ 125.12 [1]; 125.13 [3]; 125.14 [3]; Vehicle and Traffic Law§ 1192 [3]). As such, County Court did not err in denying defendant's request tocharge vehicular manslaughter in the first degree and driving while intoxicated as lesser includedoffenses of aggravated vehicular homicide.
Defendant also contends that County Court improperly denied his request for a missingwitness charge based upon the People's failure to call the passenger of Andrews' vehicle as awitness. When warranted, a missing witness charge "allows a jury to draw an unfavorableinference based on a party's failure to call a witness who would normally be expected to supportthat party's version of events" (People v Savinon, 100 NY2d 192, 196 [2003]; accord People v Smith, 33 NY3d454, 458 [2019]). A missing witness charge is warranted where the proponent of the chargeestablishes that "(1) the witness's knowledge is material to the trial; (2) the witness is expected togive noncumulative testimony; (3) the witness is under the 'control' of the party against whom thecharge is sought, so that the witness would be expected to testify in that party's favor; and (4) thewitness is available to that party" (DeVito v Feliciano, 22 NY3d 159, 165-166 [2013]; see Peoplev Gonzalez, 68 NY2d 424, 427 [1986]; People v Valentin, 173 AD3d 1436, 1440 [2019], lv denied34 NY3d 954 [2019]). The opposing party can defeat the request for a missing witness charge bydemonstrating, among other things, "that the testimony from the missing witness would bemerely cumulative to other evidence" (People v Keen, 94 NY2d 533[*6], 539 [2000]; see People v Smith, 33 NY3d at 459).
We agree with the People that a missing witness charge was not warranted here, as testimonyfrom the passenger of Andrews' vehicle would have been cumulative to the testimony given byAndrews. Both Andrews and the passenger observed defendant's driving from the same vehicleand vantage point. Moreover, Andrews' testimony demonstrated that she was the first one toobserve defendant's driving, having pointed it out to her passenger. Defendant's assertion that thepassenger "might" have been able to offer testimony that was different than that given byAndrews amounted to nothing more than conjecture. In addition, Andrews' passenger was notunder the control of the People, and defendant was free to subpoena him to testify. Under thesecircumstances, we discern no abuse of discretion in County Court denying defendant's request fora missing witness charge (see People vVega, 170 AD3d 1266, 1273 [2019], lv denied 33 NY3d 1074 [2019]; People v Jackson, 151 AD3d 1466,1469 [2017], lv denied 30 NY3d 950 [2017]; People v Turner, 73 AD3d 1282, 1284 [2010], lv denied 15NY3d 896 [2010]).
We need not be detained for long by the remaining issues raised by defendant on his appealfrom the judgment of conviction. Inasmuch as the jury viewed dozens of aerial andon-the-ground photographs and collision reconstruction diagrams and heard testimony describingthe accident scene, we find that County Court did not abuse its discretion in denying defendant'srequest to permit the jury to view the accident scene (see CPL 270.50 [1]; People vYoung, 225 AD2d 1066, 1067 [1996], lv denied 88 NY2d 1026 [1996]). Nor do wefind defendant's sentence to be harsh or excessive under the circumstances (see People vHart, 266 AD2d 698, 701 [1999], lv denied 94 NY2d 880 [2000]). Despite havingtwo prior convictions for driving while ability impaired, defendant once again chose to operate amotor vehicle after consuming alcohol, thereby causing the death of one of his passengers andserious physical injury to the driver of the oncoming vehicle. Contrary to defendant's contentions,we discern no abuse of discretion by County Court or extraordinary circumstances warranting areduction of the sentence (see People v Peryea, 68 AD3d at 1147).
Turning to defendant's motion to vacate the judgment of conviction under CPL 440.10,defendant asserts that County Court should have conducted a hearing on his claim of ineffectiveassistance of counsel, which was based upon counsel's alleged failure to inform defendant of hismaximum sentencing exposure before he rejected a favorable plea offer. In support of his claim,defendant offered nothing more than his unsubstantiated and self-serving allegations, which werecountered by an affidavit from defendant's trial counsel (see People v Allen, 174 AD3d 815, 816 [2019], lv denied34 NY3d 978 [2019]; compare People vMobley, 59 AD3d 741, 742 [2009], lv denied 12 NY3d 856 [2009]; People[*7]v Perron, 273 AD2d 549, 550 [2000]). Under suchcircumstances, County Court did not abuse its discretion in denying defendant's CPL 440.10motion without a hearing.
To the extent that we have not addressed any of defendant's remaining contentions, suchcontentions have been reviewed and found to be without merit.
Garry, P.J., Lynch, Aarons and Colangelo, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing defendant's convictions for vehicular manslaughter in the firstdegree, vehicular assault in the first degree, reckless driving and driving while intoxicated undercounts 7, 9, 12, 13 and 14 of the indictment; said counts dismissed and the sentences imposedthereon vacated; and, as so modified, affirmed. Ordered that the order is affirmed.
Footnote *:Although County Courtrenumbered the counts of the indictment prior to trial, we refer to the counts as they wereoriginally numbered in the indictment.