People v. Bank

• Decision Date: 01 November 2016
• Citation: 2016 N.Y. Slip Op. 07110,28 N.Y.3d 131,65 N.E.3d 680,42 N.Y.S.3d 651
• Parties: The PEOPLE of the State of New York, Respondent, v. Herman BANK, Appellant. The People of the State of New York, Respondent, v. Herman H. Bank, Appellant.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 131
65 N.E.3d 680
42 N.Y.S.3d 651
2016 N.Y. Slip Op. 07110

The PEOPLE of the State of New York, Respondent,
v.
Herman BANK, Appellant.

The People of the State of New York, Respondent,
v.
Herman H. Bank, Appellant.

Court of Appeals of New York.

Nov. 1, 2016.

42 N.Y.S.3d 651

Robert N. Isseks, Middletown, for appellant in the first above-entitled action.

42 N.Y.S.3d 652

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), for respondent in the first above-entitled action.

Timothy P. Donaher, Public Defender, Rochester (Timothy Davis and James Eckert of counsel), for appellant in the second above-entitled action.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

PIGOTT, J.

65 N.E.3d 681

28 N.Y.3d 134

On May 27, 2007, defendant, who was operating his car while under the influence of cocaine, drove the wrong way on Interstate 590 in Monroe County. He collided with another vehicle at highway speed, killing two of the occupants and seriously injuring a third.

Defendant was charged with multiple criminal counts, including two counts of manslaughter in the second degree (Penal Law § 125.15[1] ) and vehicular manslaughter in the first degree (Penal Law § 125.13[4] ). He pleaded not guilty and the case proceeded to a bench trial on December 9, 2008.

At trial, the People presented the testimony of three eyewitnesses who observed defendant's vehicle traveling the wrong way on the interstate shortly before the accident. They also presented several witnesses who testified to the aftermath of the crash. One of the paramedics who arrived on the scene testified that defendant, who was trapped in his vehicle, appeared "calm and glassy eyed." Defendant repeatedly asked how many cars he hit, and angrily stated that his girlfriend was "on a date with another guy." Prior to being extracted from the vehicle, the paramedic administered morphine to the defendant.

28 N.Y.3d 135

A responding state trooper testified that he found two bottles of prescription pills in defendant's vehicle. The Trooper went to the hospital after defendant was transported there, and based on his observations, asked defendant to submit to a chemical test. At first, defendant stated: "I don't think I can do that. I made a mistake earlier in Buffalo. I was with a hooker. She blew cocaine smoke in my mouth ... That will show up." The Trooper then obtained a court order for a blood draw, which revealed the presence of cocaine in defendant's system but none of the prescription drugs that were found in the vehicle. The People also presented the testimony of a toxicologist, who opined that defendant "was under the influence of cocaine at the time of the accident" and "would not be capable of safely driving a motor vehicle."

Defendant asserted the affirmative defense that he was suffering from a mental disease or defect that rendered him not legally responsible. His counsel supported that theory by calling a clinical pharmacist, who opined that defendant "in the condition that he was in on that evening, lacked adequate [insight] and judgment as to the consequences of his actions." The expert explained defendant's history of bipolar disorder and stated that before the crash, he was not taking his prescription medication, resulting in mania. She also testified

65 N.E.3d 682

that the prescription drug defendant was taking predisposes someone to entering a manic or hypomanic phase, if not prescribed with a mood stabilizer. The expert disagreed with, and challenged the finding of the People's experts who had performed an extrapolation to determine the level of cocaine in defendant's blood at the time of the crash. Finally, she discussed how the morphine that was administered to defendant at the scene of the crash could have had negative effects on

42 N.Y.S.3d 653

the voluntariness and accuracy of his post-accident statements.

In rebuttal, the People called a physician who opined that defendant was not hypomanic at the time of the crash and that even if he was, he would have understood the nature and consequences of his actions. In addition to the physician, the People also called a forensic psychiatrist, who testified that defendant's actions prior to and after the accident were consistent with drug intoxication and not his proffered defense. In surrebuttal, defense counsel challenged the methodology of the People's forensic psychiatrist with his own expert.

Following deliberations, the court found defendant guilty on all counts of the indictment. At sentencing, the court noted

28 N.Y.3d 136

that it was "limited in what sentence can be imposed as a message not only to [defendant], but to the community. I think it does call for the maximum, more than the maximum." He then sentenced defendant to an aggregate indeterminate term of incarceration of 5 to 15 years.

On direct appeal, the Appellate Division affirmed the judgment of conviction and sentence with respect to five of the eight counts, including the counts of manslaughter in the second degree and vehicular manslaughter in the first degree, rejecting defendant's argument that defense counsel's choice to present his defense through a pharmacological expert rather than a psychological or psychiatric expert deprived him of meaningful representation (129 A.D.3d 1445, 12 N.Y.S.3d 673 [4th Dept.2015] ).

I.

Some four years later and after the death of both his...