People v. Abbott

• Decision Date: 23 December 1981
• Parties: PEOPLE of the State of New York, Respondent, v. Mark D. ABBOTT, Appellant. PEOPLE of the State of New York, Respondent, v. Paul T. MOON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 344

445 N.Y.S.2d 344

84 A.D.2d 11

PEOPLE of the State of New York, Respondent, v. Mark D. ABBOTT, Appellant.

PEOPLE of the State of New York, Respondent, v. Paul T. MOON, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 23, 1981.

Rose H. Sconiers, Buffalo, for appellant in No. 899; Joseph Shifflett, Buffalo, of counsel.

Richard J. Steiner, Buffalo, for appellant in No. 900.

Edward C. Cosgrove, Buffalo, Erie County Hall, for respondent; Thomas Bender, Buffalo, of counsel.

Before HANCOCK, J. P., and CALLAHAN, DOERR, MOULE and SCHNEPP, JJ.

SCHNEPP, Justice.

The issue for determination is whether a participant in a high-speed automobile race on a public highway is subject to criminal liability when another participant's car is involved in an accident which results in the death of a third-person. The charges in this case arose from a two-car accident involving the vehicle of the defendant Mark D. Abbott. The occupants of the other car were killed.

It appears from the facts established at trial that at approximately 1:00 a. m. on January 19, 1980 defendant Paul T. Moon was traveling alone in his car in an easterly direction on Maple Road in the Town of Amherst when he became involved in a "drag race" with an automobile driven by Abbott. Maple Road, which traverses a residential area, is a four-lane highway with designated speed limits. Traffic is controlled by traffic control signal lights at various intersections. Spaced white lines divide the two eastbound and the two westbound lanes and double yellow lines spaced approximately four feet apart separate the eastbound and westbound lanes. Both Moon and Abbott were observed racing at very high rates of speed by the occupants of at least three other vehicles which were traveling along Maple Road at the time. At one point in particular Moon was observed trying to overtake Abbott's vehicle by crossing over the double yellow line and traveling in the westbound lane. An automobile driven by Patricia A. Hammond, which entered the intersection of Maple Road and Palmdale, was struck broadside by the Abbott vehicle instantly killing Mrs. Hammond and her two passengers. Moon's vehicle fishtailed through the scene of the accident and avoided collision with the two vehicles. It was described as spinning in a full circle in all four lanes before it stopped facing in a westerly direction. Moon sat in his automobile for a short time until he backed up, made a U-turn and drove away.

Moon and Abbott were jointly indicted for three counts of manslaughter in the second degree in that they, "each being intentionally aided by the other, ... recklessly caused the death of another person", three counts of criminally negligent homicide in that they, "each being intentionally aided by the other, ... with criminal negligence, caused the death of another person", and other accident related offenses. Both defendants were acquitted of the manslaughter charges but were convicted of three counts of criminally negligent homicide (Penal Law, § 125.10), reckless driving (Vehicle and Traffic Law, § 1190), and other traffic violations. Abbott was also convicted of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law, § 1192, subd. [3]).

Abbott was sentenced to an indeterminate term of imprisonment having a maximum of three years and a minimum of one year on each criminally negligent homicide conviction, a definite sentence of one year on the driving while intoxicated and reckless driving convictions, and a conditional discharge on the traffic violations; all terms to run concurrently. Moon received a concurrent one year definite sentence on each criminally negligent homicide conviction and the reckless driving conviction, and a conditional discharge on the traffic violations.

The theory of the prosecution against Moon was that he intentionally aided Abbott to engage in the criminally negligent conduct which resulted in the deaths of the three victims. Moon claims that such a theory is "not logical" and that one must be liable by "one's own acts as a principal for criminally negligent homicide or not at all". He contends that his conduct was not of such a nature as to justify a conviction for criminally negligent homicide pursuant to section 20.00 of the Penal Law, which attaches criminal liability for the conduct of another. We disagree with this contention.

A person is guilty of criminally negligent homicide under section 125.10 of the Penal Law when "with criminal negligence, he causes the death of another person". Under subdivision 4 of section 15.05 of the Penal Law a person acts with criminal negligence with respect to a result or circumstance "when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation". Section 20.00 of the Penal Law provides that when one person engages in conduct which constitutes an offense "another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he ... intentionally...