People v. Carbonaro

• Decision Date: 31 December 2015
• Citation: 134 A.D.3d 1543,23 N.Y.S.3d 525
• Parties: The PEOPLE of the State of New York, Respondent, v. Taylor D. CARBONARO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1543
23 N.Y.S.3d 525

The PEOPLE of the State of New York, Respondent,
v.
Taylor D. CARBONARO, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 31, 2015.

23 N.Y.S.3d 526

The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DeJOSEPH, JJ.

MEMORANDUM:

134 A.D.3d 1544

Defendant appeals from a judgment convicting him following a jury trial of manslaughter in the second degree (Penal Law § 125.15[1] ), vehicular manslaughter in the second degree (§ 125.12[1] ), reckless driving (Vehicle and Traffic Law § 1212 ), and two counts of driving while intoxicated (§ 1192[2], [3] ). The charges arose from an automobile accident that resulted in the

23 N.Y.S.3d 527

death of defendant's girlfriend (decedent). The accident occurred when a vehicle occupied by defendant and decedent veered off the road at a high speed and struck a utility pole and then a tree. The primary issue at trial was whether defendant was operating the vehicle at the time of the accident. The jury rendered a guilty verdict on all counts of the indictment, evidently resolving that factual issue against defendant.

Defendant failed to preserve for our review his contention that the trial evidence is legally insufficient to establish that he was operating the vehicle at the time of the accident. Although defendant moved at the close of the People's case for a trial order of dismissal on the ground that the People failed to prove that element of the crimes charged, he did not renew the motion after the defense rested (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 ; People v. Nichols, 89 A.D.3d 1503, 1504, 932 N.Y.S.2d 746 ). In any event, we conclude that the contention is without merit. The evidence established that defendant admitted three separate times to the police that he was driving the vehicle and that, during the ambulance ride to the hospital, he told a paramedic that he "screwed up," he was sorry, and he had never done "this before." Defendant also admitted that he was driving to an ex-girlfriend who visited him in the hospital while he was recovering from the injuries he sustained in the accident. The ex-girlfriend testified, "He told me that he went to the bar with [decedent] and before leaving the bar they got in an argument and he told me he

134 A.D.3d 1545

remembers driving like speeding because he was angry." She further testified that, several months later, defendant called her and said that he had good news, i.e., that his statements to the police were "getting tossed out," and that, if the charges were dismissed, he would use "this as a second chance to start school."

Further, the evidence established that the vehicle was registered to defendant, and that decedent did not even have a driver's license. According to decedent's father, with whom she and defendant lived, decedent to his knowledge never had driven the vehicle. In addition, an acquaintance of the couple who was at the bar drinking with them before the accident testified that he saw defendant leave the bar with keys in his hand and say, "I'm going home." That witness also testified that decedent followed defendant down the street, presumably to the vehicle. Yet another witness testified that, when he saw the vehicle in question speeding down the road moments before the accident, the driver was "slouching" down in the driver's seat and leaning on the center console. Decedent was only four feet, nine inches tall, seven inches shorter than defendant, making it unlikely that she could have been so positioned while operating the vehicle.

We also note that defendant's expert witness agreed with the People's expert that the driver was ejected almost immediately after the vehicle struck the tree, and that the passenger was in the vehicle for a longer period of time after the collision, thus subjecting the passenger to more injuries. Defendant sustained only a fractured leg and a cut to his head, while decedent suffered many more injuries of greater severity. It is undisputed that decedent's blood was found on the front passenger's seat, and none of defendant's blood was found anywhere in the vehicle. Decedent's body was found lying next to the stopped vehicle, directly outside the driver's door, as if she had fallen out, while defendant was found some 20 to 30 feet

23 N.Y.S.3d 528

away from the vehicle, trapped under a trailer. Finally, defendant had a compression injury to his left leg that appeared to have been caused by his leg striking the window crank on the driver's door, and the Medical Examiner testified to a reasonable degree of medical certainty that such injury was caused by the window crank.

To be sure, defendant attempted at trial to explain or controvert the above evidence, and there is other evidence suggesting that decedent may have been operating the vehicle. In determining whether the evidence is legally sufficient, however, we must view the evidence in the light most favorable to the

134 A.D.3d 1546

People (see People v. Cabey, 85 N.Y.2d 417, 420, 626 N.Y.S.2d 20, 649 N.E.2d 1164 ; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), and afford them the benefit of every favorable inference (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Applying that standard of review, we conclude that the evidence is more than sufficient to establish that defendant was operating the vehicle at the time of the accident.

Moreover, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Defendant's contention is based largely on his assertion that the medical evidence conclusively establishes that decedent was operating the vehicle. According to defendant, the injuries sustained by decedent could have come only from her head striking the steering wheel, which was bent toward the front windshield. We reject that assertion. Although that medical evidence is probative, it is not conclusive. As the People's expert testified, decedent's injuries could have occurred by her head striking the center console or some other part of the vehicle's interior other than the steering wheel.

Moreover, defendant's expert agreed that decedent emerged from the vehicle through the driver's door, which opened upon impact, and it is therefore possible that her head or face came into contact with the steering wheel after the vehicle's initial impact with the utility pole. As noted above, both experts agreed that the driver was ejected from the vehicle almost immediately upon impact with the tree. Because the air bag in the steering wheel deployed immediately, then quickly deflated, and the driver's body was pushed sharply to the left, and not forward, it is entirely possible, as the People's expert opined, that the driver's head never struck the steering wheel. In sum, we conclude that, although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see People v. Kalinowski, ...