People v. Birdsall

• Decision Date: 18 May 1995
• Citation: 215 A.D.2d 878,627 N.Y.S.2d 118
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric BIRDSALL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 118

627 N.Y.S.2d 118

215 A.D.2d 878

The PEOPLE of the State of New York, Respondent, v. Eric BIRDSALL, Appellant.

Supreme Court, Appellate Division Third Department.

May 18, 1995.

Marshall Nadan, Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW and YESAWICH, JJ.

CREW, Justice.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 12, 1993, upon a verdict convicting defendant of the crimes of manslaughter in the second degree and reckless endangerment in the first degree (two counts).

On the evening of April 21, 1991, defendant, Jeffrey Damiano and James Rullan drove in Rullan's car to the Freetown Road overpass in Ulster County. Damiano stood on the north side of the bridge while defendant stood on the south side and watched for approaching traffic. Shortly thereafter, a tractor trailer operated by Keith Dibble approached the overpass on the Thruway below and defendant alerted Damiano to that effect. Damiano then threw a rock off the overpass which struck the tractor trailer shattering the windshield.

Rullan then drove Damiano and defendant to the South Ohioville overpass, stopping along the way to collect additional rocks from a stone wall, one of which was described as being a 52-pound boulder. At about the time that the three were driving to or were at the South Ohioville overpass, James Carroll was approaching the overpass on the Thruway below. As he drew near the overpass, he observed the headlights of a vehicle on the overpass and saw two figures moving to the railing. He then saw one of them make a throwing motion and heard the sound of an explosion on the roof of his car. He also observed baseball size rocks scattered upon the pavement. Moments later, as Karen Zentner approached the same overpass on the Thruway, Damiano put the 52-pound boulder onto the railing and pushed it over the edge, where it crashed through Zentner's windshield killing her instantly.

Defendant was indicted and charged with one count of murder in the second degree and three counts of reckless endangerment in the first degree. Following a jury trial, defendant was convicted of the lesser included offense of manslaughter in the second degree, as well as two counts of reckless endangerment in the first degree. ¹ For the manslaughter conviction, defendant was sentenced to an indeterminate term of imprisonment of 5 to 15 years and for each of the reckless endangerment convictions, defendant was sentenced to 2 1/3 to 7 years, with one term running concurrently with the manslaughter sentence and one running consecutively thereto.

On this appeal defendant argues that the evidence at trial was insufficient to warrant conviction as to the third count of the indictment charging reckless endangerment in the first degree, which encompassed the incident involving Carroll. Defendant contends that there was no evidence placing him at the scene when the rock which struck Carroll's car was thrown. We disagree. While it is true that Carroll was not able to identify the two persons he observed on the overpass, defendant's signed statement placed him there at the time the Zentner vehicle was struck with the boulder, as well as at the Freetown Road overpass where the rock throwing incidents began. Rullan testified that he was acting as lookout for Damiano and defendant because they were doing something illegal and did not want to get caught, and he testified as to the three of them looking for and collecting rocks prior to arriving at the South Ohioville overpass. Given that the Carroll vehicle was struck only shortly before Zentner was killed, the jury surely was permitted to infer that the perpetrators were defendant, Damiano and Rullan.

Defendant further contends that the small size of the stone which struck Carroll's vehicle precludes, as a matter of law, a finding that defendant evinced a depraved indifference to human life (Penal Law § 120.25). We find this argument without merit. Determining whether the crime of reckless endangerment occurred requires " 'an objective assessment of the degree of risk presented by defendant's reckless conduct' " (People v. Davis, 72 N.Y.2d 32, 36, 530 N.Y.S.2d 529, 526 N.E.2d 20, quoting People v. Register, 60 N.Y.2d 270, 277, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544), and when making that assessment the evidence must be considered in the light most favorable to the People (see, People v. Tunstall, 197 A.D.2d 791, 792, 603 N.Y.S.2d 86, lv. denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502). Clearly, throwing a stone large enough to create a 12-inch dent in the roof of a car created the risk that the driver of such car would be startled upon impact, thereby losing control of the car and becoming involved in a high-speed accident. Thus, the evidence presented was sufficient to permit a jury to find beyond a reasonable doubt that the throwing of such a stone from the overpass created a grave risk of death.

Defendant next contends that County Court erred in denying his motion for a mistrial. At a Ventimiglia-type hearing the People sought to prove, on their case-in-chief, "[t]hat on an occasion prior to the Karen Zentner death, [defendant] had previously thrown a rock but someone got hurt and he never did it again". County Court declined to permit such proof. Nevertheless, during examination of a State Trooper concerning certain statements made to him by defendant, he was asked by the prosecution "What happen[ed] next?", to which he responded that defendant stated he had once thrown a rock himself, but someone got hurt and he never did it again. County Court denied a motion for a mistrial and then gave extensive and forceful curative instructions to the jury. Defendant contends this was reversible error. We disagree.

It is axiomatic that the decision to grant or deny a mistrial is within the...