People v. Carkner

• Citation: 623 N.Y.S.2d 350,213 A.D.2d 735
• Parties: The PEOPLE of the State of New York, Respondent, v. Minard CARKNER, Appellant.
• Decision Date: 02 March 1995
• Court: New York Supreme Court Appellate Division

Page 350

623 N.Y.S.2d 350

213 A.D.2d 735

The PEOPLE of the State of New York, Respondent, v. Minard CARKNER, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 2, 1995.

Ackerman, Wachs and Finton P.C. (F. Stanton Ackerman, of counsel), Albany, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, of counsel), Albany, for respondent.

Before MERCURE, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 6, 1993, upon a verdict convicting defendant of the crime of vehicular manslaughter in the second degree.

Defendant's conviction of vehicular manslaughter in the second degree arises out of a one-vehicle accident which occurred late at night after defendant and his companion had visited several bars. Defendant and his companion were ejected from the vehicle. Defendant's companion died as a result of her injuries shortly after the accident. After a trial at which the issue of defendant's identity as the driver of the vehicle was vigorously litigated, defendant was convicted of the top count of the indictment. He appeals from the judgment.

We turn first to defendant's argument concerning the sufficiency of the evidence. There is ample evidence in the record from which the jury could reasonably conclude that defendant was driving at the time of the accident. Defendant does not argue to the contrary, but instead claims that there is insufficient evidence of his criminal negligence, which is an element of vehicular manslaughter in the second degree (see, Penal Law § 125.12[1]. Proof of intoxication alone is insufficient to establish criminal negligence (see, Matter of Johnston, 75 N.Y.2d 403, 409-410, 554 N.Y.S.2d 88, 553 N.E.2d 566). The People had to establish that defendant's intoxication affected his physical and mental capacity to the extent that it caused him to operate his vehicle in a culpably reckless manner (id., at 410, 554 N.Y.S.2d 88, 553 N.E.2d 566).

There is evidence in the record from which the jury could reasonably conclude that, while traveling at 50 to 55 miles per hour in a southerly direction on a curve that could be negotiated at almost twice that speed, defendant's vehicle drifted off the road to the right, and instead of making a minor correction in steering that would have put his vehicle back in its travel lane, defendant overreacted. As a result, the vehicle began to slide across the northbound lane. The vehicle spun around and struck the face of a rock ledge off the east side of the roadway almost head-on at approximately 50 to 55 miles per hour. According to an accident reconstruction expert, defendant took no corrective action after the vehicle began to slide, such as countersteering or braking, which could have avoided the lethal impact. Based upon the evidence of defendant's intoxication and his failure to maintain control of his vehicle for no apparent reason and his failure to take any corrective action despite the opportunity to do so, the jury could reasonably conclude that defendant's conduct grossly deviated from the standard of care a reasonable person would have observed in a similar situation. His conduct, therefore, was sufficiently blameworthy to sustain a finding of criminal negligence (see, People v. Rollins, 118 A.D.2d 949, 951, 499 N.Y.S.2d 817; see also, People v. Duffy, 185 A.D.2d 528, 586 N.Y.S.2d 316, lv. denied 80 N.Y.2d 903, 588 N.Y.S.2d 828, 602 N.E.2d 236; cf., People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 253). There is also no basis to disturb the jury verdict as against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

We agree with defendant that the prosecutor lacked the authority to subpoena defendant's hospital records when no Grand Jury was investigating the matter and no criminal proceeding was pending (see, CPL 610.20; People v. Natal, 75 N.Y.2d 379, 385, 553 N.Y.S.2d 650, 553 N.E.2d 239, cert. denied 498 U.S. 862, 111 S.Ct. 169, 112 L.Ed.2d 134), but the error does not necessarily require a reversal of defendant's conviction (see, People v. Natal, supra). Thus, if defendant ultimately waived the physician-patient privilege, reversal of his conviction as a result of the prosecutor's misuse of the subpoena process would not be appropriate (see, People v. Kral, 198 A.D.2d 670, 671-672, 603 N.Y.S.2d 1004, lv. denied 82 N.Y.2d 926, 610 N.Y.S.2d 178, 632 N.E.2d 488). County Court ruled that defendant "opened the door" during cross-examination of a hospital nurse who had drawn blood from defendant to determine defendant's blood alcohol level. We agree with defendant that this ruling was erroneous.

It is undisputed that defendant's hospital records contain confidential information subject to the physician-patient privilege (see, CPLR 4504[a], which is applicable in a criminal proceeding (see, People v. Eckert, 2 N.Y.2d 126, 128, 157 N.Y.S.2d 551, 138 N.E.2d 794). In the absence of an express waiver, a litigant waives the privilege by affirmatively placing his or her physical or mental condition in issue (Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857). Defendant herein raised the issue of whether he was the person from whom the blood sample was drawn by referring to certain discrepancies on a form from his hospital records by which the police requested that the blood sample be taken. The form contained no confidential information, and the question of whether defendant was the person from whom the blood sample was drawn has nothing to do with defendant's physical or mental condition. By raising the identity issue, defendant "opened the door" to permit introduction of evidence relevant to the identity issue. He did not, however, affirmatively put his physical or mental condition in issue so as to waive the physician-patient privilege with regard to all of the confidential information contained in the hospital records (see, People v. Osburn, 155 A.D.2d 926, 927, 547 N.Y.S.2d 749, lv. denied 75 N.Y.2d 816, 552 N.Y.S.2d 566, 551 N.E.2d 1244). The confidential information should not, therefore, have been admitted into evidence over defendant's objection. We also note that although defendant's medical condition was clearly at issue from the outset insofar as the injuries he sustained in the accident are relevant to his position in the vehicle, defendant's mere denial that he was driving is insufficient to constitute the type of affirmative conduct necessary to waive the physician-patient privilege (see, Dillenbeck v. Hess, 73 N.Y.2d 278, 287-288, 539 N.Y.S.2d 707, 536 N.E.2d 1126).

Defendant contends that the prosecutor's misuse of the subpoena process to obtain the hospital records prior to any Grand Jury investigation or pending criminal proceeding, together with the violation of his physician-patient privilege, requires reversal of the conviction. We disagree. When the form that defense counsel used in cross-examination of the nurse was introduced in evidence, defense counsel consented to the prosecutor's ¹ request that she be provided with a copy of all of defendant's hospital records. Accordingly, the People had access to the hospital records without regard to the earlier subpoena, and there is nothing to suggest that the People used any confidential information in the hospital records before they were provided to them at trial or that any witness was provided with confidential information before the records were introduced at trial. Defendant was not prejudiced by the People's misuse of the subpoena process and, therefore, reversal is not required (see, ...