People v. Buffington
| Decision Date | 03 December 1970 |
| Citation | 316 N.Y.S.2d 481,35 A.D.2d 1063 |
| Parties | PEOPLE of the State of New York, Appellant, v. Edward L. BUFFINGTON, Jr., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jack B. Lazarus, Edward J. Spires, Rochester, for appellant.
Charles F. Crimi, Rochester, for respondent.
Before DEL VECCHIO, J.P., and MARSH, WITMER, MOULE and HENRY, JJ.
The People appeal from an order of Monroe County Court dismissing an indictment charging defendant with the crime of criminally negligent homicide in violation of section 125.10 of the Penal Law. The evidence before the Grand Jury shows that defendant while driving his automobile at excessive speed in the night time crossed a double solid pavement marking while rounding a curve and descending a hill, passed an automobile and while on the wrong side of the highway sideswiped an oncoming car, continued on the wrong side of the highway 265 feet and struck another automobile head-on killing a passenger therein. His grossly excessive speed is evidenced by the testimony of two witnesses, the distance travelled after the first collision, the demolished condition of the second automobile with which his car collided and the 61 foot distance travelled by his car thereafter. Excessive speed is also evidenced by the injuries suffered by a passenger in his car who, although wearing a seat belt, sustained fractures of virtually every bone in her body except her right arm and left foot and ankle. He disregarded a highway warning sign showing a 35 mile per hour speed limit and two right curve signs. He crossed a solid double pavement marking in a no-passing zone and drove on the left side thereof, in violation of sections 1124, 1125 and 1126 of the Vehicle and Traffic Law. The evidence would support a finding that defendant acted with criminal negligence (Penal Law § 15.05(4)). A jury could find that he failed to perceive a substantial and unjustifiable risk that the result would occur and that the risk was of such a nature and degree that failure to perceive it constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation. The statutory test for the support of an indictment is met where, as here, the testimony would warrant conviction by a trial jury. The indictment should be upheld. (Code Crim.Pro. § 251; People v. Adamo, 25 A.D.2d 425, 266 N.Y.S.2d 586).
Order unanimously reversed on the law and facts, motion denied and...
To continue reading
Request your trial
-
State v. Olsen
...reckless conduct is required. See People v. Buffington, 61 Misc.2d 429, 304 N.Y.S.2d 746 (1969), rev'd on other grounds, 35 A.D.2d 1063, 316 N.Y.S.2d 481 (1970). The difference between reckless behavior and negligent behavior is primarily measured by the state of mind of the individual. As ......
-
People v. Hommel
...principles. The trial court then continued: 'Let me read to you one further headnote. In the case of People against Buffington (35 A.D.2d 1063, 316 N.Y.S.2d 481), again in 1967 our Appellate Division said: 'Evidence'--pertaining to that case, of course--'evidence of the defendant's excessiv......
- People v. Canna
-
People v. Lasch
...v. Blair, 33 A.D.2d 1100, 308 N.Y.S.2d 242; cf., People v. Rooney, 57 N.Y.2d 822, 455 N.Y.S.2d 595, 441 N.E.2d 1113; People v. Buffington, 35 A.D.2d 1063, 316 N.Y.S.2d 481). Adjudication unanimously modified on the law, defendant's conviction for criminally negligent homicide vacated, and t......