People v. Decina

Decision Date29 November 1956
Citation157 N.Y.S.2d 558,138 N.E.2d 799,2 N.Y.2d 133
Parties, 138 N.E.2d 799, 63 A.L.R.2d 970 The PEOPLE of the State of New York, Appellant-Respondent, v. Emil DECINA, Respondent-Appellant.
CourtNew York Court of Appeals Court of Appeals

John F. Dwyer, Dist. Atty., Buffalo (Leonard Finkelstein, Asst. Dist. Atty. of Buffalo, of counsel), for appellant-respondent.

Charles J. McDonough, Buffalo, for respondent-appellant.

FROESSEL, Judge.

At about 3:30 p. m. on March 14, 1955, a bright, sunny day, defendant was driving, alone in his car, in a northerly direction on Delaware Avenue in the city of Buffalo. The portion of Delaware Avenue here involved is 60 feet wide. At a point south of an overhead viaduct of the Erie Railroad, defendant's car swerved to the left, across the center line in the street, so that it was completely in the south lane, traveling 35 to 40 miles per hour.

It then veered sharply to the right, crossing Delaware Avenue and mounting the easterly curb at a point beneath the viaduct and continued thereafter at a speed estimated to have been about 50 or 60 miles per hour or more. During this latter swerve, a pedestrian testified that he saw defendant's hand above his head; another witness said he saw defendant's left arm bent over the wheel, and his right hand extended towards the right door.

A group of six schoolgirls were walking north on the easterly sidewalk of Delaware Avenue, two in front and four slightly in the rear, when defendant's car struck them from behind. One of the girls escaped injury by jumping against the wall of the viaduct. The bodies of the children struck were propelled northward onto the street and the lawn in front of a coal company, located to the north of the Erie viaduct on Delaware Avenue. Three of the children, 6 to 12 years old, were found dead on arrival by the medical examiner, and a fourth child, 7 years old, died in a hospital two days later as a result of injuries sustained in the accident.

After striking the children, defendant's car continued on the easterly sidewalk, and then swerved back onto Delaware Avenue once more. It continued in a northerly direction, passing under a second viaduct before it again veered to the right and remounted the easterly curb, striking and breaking a metal lamppost. With its horn blowing steadily apparently because defendant was 'stopped over' the steering wheel the car proceeded on the sidewalk until if finally crashed through a 7 1/4-inch brick wall of a grocery store, injuring at least one customer and causing considerable property damage.

When the car came to a halt in the store, with its horn still blowing, several fires had been ignited. Defendant was stooped over in the car and was 'bobbing a little'. To one witness he appeared dazed, to another unconscious, lying back with his hands off the wheel. Various people present shouted to defendant to turn off the ignition of his car, and 'within a matter of seconds the horn stopped blowing and the car did shut off'.

Defendant was pulled out of the car by a number of bystanders and laid down on the sidewalk. To a policeman who came on the scene shortly he appeared 'injured, dazed'; another witness said that 'he looked as though he was knocked out, and his arm seemed to be bleeding'. An injured customer in the store, after receiving first aid, pressed defendant for an explanation of the accident and he told her: 'I blacked out from the bridge'.

When the police arrived, defendant attempted to rise, staggered and appeared dazed and unsteady. When informed that he was under arrest, and would have to accompany the police to the station house, he resisted and, when he tried to get away, was handcuffed. The foregoing evidence was adduced by the People, and is virtually undisputed defendant did not take the stand nor did he produce any witnesses.

From the police station defendant was taken to the E. J. Meyer Memorial Hospital, a county institution, arriving at 5:30 P.M. The two policemen who brought defendant to the hospital instructed a police guard stationed there to guard defendant, and to allow no one to enter his room. A pink slip was brought to the hospital along with defendant, which read:

'Buffalo Police Department, Inter-Departmental Correspondence. To Superintendent of Meyer Memorial Hospital, from Raymond, J. Smith, Captain, Precinct 17. Subject, Re: One Emil A. Decina, 87 Sidney, CD 553284, date 3-14-55. Sir: We are forwarding one Emil A. Decina, age 33, of 87 Sidney Street, to your hospital for examination on the recommendation of District Attorney John Dwyer and Commissioner Joseph A. De Cillis. Mr. Decina was involved in a fatal accident at 2635 Delaware Avenue at 3:40 P.M. this date. There were three fatalities, and possibly four. A charge will be placed against Mr. Decina after the investigation has been completed.'

On the evening of that day, after an interne had visited and treated defendant and given orders for therapy, Dr. Wechter, a resident physician in the hospital and a member of its staff, came to his room. The guard remained, according to his own testimony, in the doorway of the room according to Dr. Wechter, outside, 6 or 7 feet away. He observed both Dr. Wechter and defendant 'on the 'bed', and he stated that he heard the entire conversation between them, although he did not testify as to its content.

Before Dr. Wechter saw defendant, shortly after the latter's admission on the floor, he had read the hospital admission record, and had either seen or had committed to him the contents of the 'pink slip'. While he talked with defendant, another physician came in and left. After giving some additional brief testimony, but before he was permitted to relate a conversation he had with defendant which was contained in the hospital notes, defense counsel was permitted with some restriction to cross-examine the doctor. In the course of that cross-examination, the doctor testified as follows:

That he saw defendant in his professional capacity as a doctor but that he did not see him for purposes of treament. However, it was shown that at a former trial at which the jury had disagreed, he stated that the information he obtained was pursuant to his duties as a physician; that the purpose of his examination was to diagnose defendant's condition; that he questioned the defendant for the purpose of treatment among other things; that in the hospital they treat any patient that comes in.

He further testified at this trial that ordinarily the resident on the floor is in charge of the floor, and defendant was treated by more than one doctor; that he took the medical history. At the previous trial, when he was asked whether he represented the police and the district attorney, he replied: 'I don't know. I just seen him as a patient coming into the hospital'. He now stated that he saw defendant as part of his routine duties at the hospital; that he would say that defendant 'was a patient'; that he was not retained as an expert by the district attorney or the Police Department, and was paid nothing to examine defendant; that his examination was solely in the course of his duties as a resident physician on the staff of the hospital, and that, whether or not he had a slip from the police, so long as that man was on his floor as a patient, he would have examined him.

He also stated he never told defendant that he had any pink slip, or that he was examining him for the district attorney or the Police Department, or that defendant was under no duty to talk, or that anything he said might be used against him at a later trial. He further testified that he was a doctor at the hospital at which defendant was a patient; that he personally wrote items in the hospital record, after his conversations with defendant; that he saw defendant three times; that he was asked by the district attorney to submit a voucher for consideration by the comptroller's office, but that was not done until after the first trial. He also stated at this trial that the discharge summary was made out by him, and that of the four sheets of progress notes, at least the first two sheets were in his handwriting.

The direct examination was then continued, the doctor being permitted to state the conversation with defendant over objection and exception. He asked defendant how he felt and what had happened. Defendant, who still felt a little dizzy or blurry, said that as he was driving he noticed a jerking of his right hand, which warned him that he might develop a convulsion, and that as he tried to steer the car over to the curb he felt himself becoming unconscious, and he thought he had a convulsion. He was aware that children were in front of his car, but did not know whether he had struck them.

Defendant then proceeded to relate to Dr. Wechter his past medical history, namely, that at the age of 7 he was struck by an auto and suffered a marked loss of hearing. In 1946 he was treated in this same hospital for an illness during which he had some convulsions. Several burr holes were made in his skull and a brain abscess was drained. Following this operation defendant had no convulsions from 1946 through 1950. In 1950 he had four convulsions, caused by scar tissue on the brain. From 1950 to 1954 he experienced about 10 or 20 seizures a year, in which his right hand would jump although he remained fully conscious. In 1954, he had 4 or 5 generalized seizures with loss of consciousness, the last being in September, 1954, a few months before the accident. Thereafter he had more hospitalization, a spinal tap, consultation with a neurologist, and took medication daily to help prevent seizures.

On the basis of this medical history, Dr. Wechter made a diagnosis of Jacksonian epilepsy, and was of the opinion that defendant had a seizure at the time of the accident. Other members of the hospital staff performed blood tests and took an electroencephalogram during defendant's three-day stay there. The testimony of Dr....

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