People v. Cole

• Decision Date: 21 November 2019
• Docket Number: 110189
• Parties: The PEOPLE of the State of New York, Respondent, v. John W. COLE, Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1096
114 N.Y.S.3d 132

The PEOPLE of the State of New York, Respondent,
v.
John W. COLE, Appellant.

110189

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

Calendar Date: October 15, 2019
Decided and Entered: November 21, 2019

114 N.Y.S.3d 134

Bracewell LLP, New York City (Paul Shechtman of counsel), for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Lynch, J.P., Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.P.

177 A.D.3d 1097

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered May 11, 2018, upon a verdict convicting defendant of the crimes of assault in the second degree, driving while ability impaired and reckless driving.

In August 2017, defendant was charged in a four-count indictment with crimes related to a single car, late night accident on March 11, 2017, during which defendant crashed the vehicle he was driving and a rear-seat passenger was seriously injured. Following a jury trial, defendant was convicted of assault in the second degree based on a theory of recklessness, driving while ability impaired and reckless driving, but acquitted on a charge of vehicular assault in the second degree. He was sentenced to a prison term of seven years with three years of postrelease supervision on the assault conviction, to run concurrently with 15 and 30–day jail sentences on the lesser convictions. Defendant appeals.

Defendant maintains that the verdict convicting him of assault in the second degree was against the weight of the evidence. We disagree. Where, as here, an acquittal would not have been unreasonable given the differing witness accounts of the events leading up to the accident, our role is to view the evidence in a neutral light and weigh the conflicting testimony, assess the rational inferences to be drawn from that testimony and determine whether the jury was justified in finding that the elements of the crime were proven beyond a reasonable doubt (see People v. Danielson , 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Brinkley , 174 A.D.3d 1159, 1160, 106 N.Y.S.3d 210 [2019] ). In making this assessment, "[g]reat deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. Race , 78 A.D.3d 1217, 1219, 910 N.Y.S.2d 271 [2010], lv denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187 [2011] ). For a conviction of assault in the second degree, the People must prove that the defendant "recklessly cause[d] serious physical injury to another person by means of ... a dangerous instrument" ( Penal Law § 120.05[4] ). In the assault context, a person acts recklessly when "he [or she] is aware of and consciously disregards a substantial

114 N.Y.S.3d 135

and unjustifiable risk" of harming another person ( Penal Law § 15.05[3] ). "The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation"

177 A.D.3d 1098

( Penal Law § 15.05[3] ). Serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" ( Penal Law § 10.00[10] ). Further, a vehicle is a dangerous instrument (see Penal Law § 10.00[13] ).

After an evening out with several couples during which the group had dinner and went to see a band at a bar, defendant and his wife left the bar around midnight to return home with Deanna Shapiro and Scott Shapiro. Defendant was driving, his wife was in the passenger seat and the Shapiros were riding in the back seat of the car. Scott Shapiro (hereinafter Shapiro) testified that he asked defendant if he was okay to drive, and defendant "indicated that he was fine to drive and that he had been drinking water for the previous hour." Shapiro testified that he saw defendant with alcoholic drinks during the evening and that he could "say with certainty that at no point did I see him without a drink." For his part, Shapiro testified that he had about five or six drinks, and thought his wife "had close to the same." According to Shapiro, after turning off Route 9 onto Sitterly Road in the Town of Halfmoon, Saratoga County, defendant "basically just floored the vehicle, just opened it up to see how fast [the car] could go," adding that it "[f]elt like [defendant] just accelerated as fast as he could accelerate." According to Shapiro, he and his wife both asked defendant to slow down and defendant responded with words "to the effect of [d]on't tell me what to do or [s]hut up woman" – a comment apparently directed at defendant's wife. Shapiro continued that "[i]t actually felt like [defendant] accelerated further after his response and it was almost immediately he had lost control of the vehicle." Deanna Shapiro sustained injuries during the accident that have left her paralyzed from the neck down. Shapiro acknowledged during his testimony that he and his wife retained civil counsel prior to the grand jury proceedings. Before he retained counsel, Shapiro had told the police that defendant "was driving pretty fast and began to swerve" without mentioning any warnings to slow down. Shapiro conceded that he may have text-messaged defendant the morning of the accident "not to beat himself up." For her part, Deanna Shapiro gave a similar account of the events on Sitterly Road, asking defendant to "please slow down you're going too fast." She acknowledged that she was not wearing a seat belt.

David Ennist, a State Trooper, responded to the accident scene. Ennist testified that he did not believe defendant's

177 A.D.3d 1099

explanation that he lost control trying to avoid a construction sign in the road, and observed that defendant had "an odor of alcoholic beverages" and "bloodshot glassy eyes." After defendant failed four field sobriety tests, he refused to take a chemical blood alcohol content test. Defendant was placed under arrest and, upon being read his Miranda rights, he initially said that he had two to three beers, but later admitted that he had four or five beers over the course of the evening. In contrast, Shapiro testified that he purchased a vodka drink for defendant.

According to Ennist, the vehicle initially went off the south side of the road, "sheered off a fire hydrant" and then crossed back over both lanes over the

114 N.Y.S.3d 136

north shoulder into a construction area where it "appeared to have hit [a] tree." State Trooper Michael Menges gave a similar description of the accident, adding that the vehicle came to rest in some construction debris. Menges also smelled alcohol on defendant's breath. Jeremy Shultis, a State Police investigator specializing in accident reconstruction, explained that there were no mechanical issues with the car, there were no markings to indicate that defendant braked during the accident and that defendant was going 58 to 78 miles per hour. The speed limit was 40 miles per hour and there were road signs warning of a "curve ahead" where the accident occurred. An independent consultant, Brian Chase, reiterated that the vehicle's mechanical systems were intact but that no braking occurred and that "the accelerator pedal [was] at 99 to 100 percent." On cross-examination, Chase agreed that the vehicle, a 2015 BMW 650i, was a "very sophisticated and high-performance vehicle" capable of cornering a curve "better than some other vehicles."

...