People v. Demetsenare

• Decision Date: 09 October 1997
• Citation: 663 N.Y.S.2d 299,243 A.D.2d 777
• Parties: , 1997 N.Y. Slip Op. 8317 The PEOPLE of the State of New York, Respondent, v. Lloyd DEMETSENARE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 299

663 N.Y.S.2d 299

243 A.D.2d 777, 1997 N.Y. Slip Op. 8317

The PEOPLE of the State of New York, Respondent, v. Lloyd DEMETSENARE, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 9, 1997.

James M. Hartmann, Delhi, for appellant.

Richard D. Northrup, Jr., District Attorney, Walton, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Delaware County (Estes, J.), rendered December 9, 1996, upon a verdict convicting defendant of the crimes of vehicular manslaughter in the second degree (two counts) and failure to keep right.

This matter stems from an accident occurring on December 29, 1995 at 9:30 P.M. in which defendant, operating a 1995 Chevrolet S-10 Blazer on County Route 18 in the Town of Stamford, Delaware County, crossed a double-yellow pavement marking, continued across the left lane and onto the left shoulder of the road striking Eleanor Shepard, who was operating a snowmobile. The victim was crossing Route 18 from defendant's right to his left. The impact was between the left rear of the snowmobile and the front fender of defendant's car. The victim died immediately from the injuries sustained in the impact.

Defendant was charged in a six-count indictment with vehicular manslaughter in the second degree (two counts), lesser included offenses of criminally negligent homicide, driving while intoxicated under Vehicle and Traffic Law § 1192(2) and driving while intoxicated under Vehicle and Traffic Law § 1192(3), and failure to keep right. Defendant was convicted of all six counts. County Court, in response to a posttrial motion by defendant, dismissed the convictions based on criminally negligent homicide, driving while intoxicated pursuant to Vehicle and Traffic Law § 1192(2) and driving while intoxicated pursuant to Vehicle and Traffic Law § 1192(3), finding that they were lesser included offenses of the crimes for which defendant had also been convicted.

Prior to sentence, defendant moved to set aside the verdict for juror misconduct. A hearing was held whereupon County Court denied the motion. Defendant was sentenced to an indeterminate term of imprisonment of 2 1/3 to 7 years for vehicular manslaughter in the second degree (count 1), fined $5,000 and a $155 surcharge was imposed. On count 2, vehicular manslaughter in the second degree, he was sentenced to 2 1/3 to 7 years, to run concurrently with the sentence imposed on count 1; for failure to keep right (count 6), County Court imposed a maximum 15-day term of imprisonment and a $100 fine. Defendant's license to drive was revoked for one year.

Defendant contends that he is entitled to have the verdict set aside in that he was prejudiced at trial as a result of jury misconduct. To prevail on such a motion defendant must demonstrate by a fair preponderance of the evidence that the alleged improper conduct was unknown to him prior to the verdict and that it affected a substantial right of his (see, CPL 330.30[2]; 330.40[2][g] ).

The instant conduct involved a juror's failure to advise that his 12-year-old son had been a victim of a crime (arson). At the time of jury service, no charges had been laid as to the crime. The juror explained that he forgot about the incident and was not sure if his son was a crime victim. He said he did not know if formal charges would be laid. He stated that the incident did not affect his deliberations or bias him against defendant. The juror also answered that he believed an accused must have done something wrong if he is charged with a crime. The court credited the juror's explanations. We conclude that County Court's determination is entitled to great weight and we decline to disturb the court's resolution of this issue (see, People v. Rosenthal, 264 App.Div. 822, 35 N.Y.S.2d 215, revd. on other grounds 289 N.Y. 482, 46 N.E.2d 895).

Defendant contends that rebuttal evidence was improperly offered in this case after the prosecution rested. The prosecution presented Sherry Stewart as a rebuttal witness after indicating to County Court before recess of the previous day that it did not anticipate any rebuttal testimony. The District Attorney explained that before the prior evening he was unaware that Stewart, an employee of a restaurant near the accident scene, saw defendant the night of the accident and had information regarding the issue of defendant's intoxication, which would rebut testimony offered by defense witness Brian Fitch and testimony as to the removal of beer cans from defendant's motor vehicle by defendant's wife. County Court permitted the witness to be called pursuant to CPL 260.30(7).

We conclude that County Court did not abuse its discretion in permitting Stewart to testify. "The statutory framework * * * is not a rigid one and the common-law power of the trial court to alter the order of proof 'in its discretion, and in furtherance of justice' remains at least up to the time the case is submitted to the jury * * * " (People v. Olsen, 34 N.Y.2d 349, 353, 357 N.Y.S.2d 487, 313 N.E.2d 782, quoting People v. Benham, 160 N.Y. 402, 437, 55 N.E. 11 [citations omitted] ). Defendant's witness Fitch had opined that defendant did not appear intoxicated. Thus, Stewart's testimony was relevant to contradict Fitch's evidence whereby defendant endeavored to prove that he was not visibly intoxicated (see, People v. Lebrun, 126 A.D.2d 913, 913-914, 511 N.Y.S.2d 431, lv. denied 69 N.Y.2d 882, 515 N.Y.S.2d 1030, 507 N.E.2d 1100).

Defendant next contends that the verdict should have been set aside on the ground that Stewart committed perjury. We disagree. Defendant's argument is based on changes in Stewart's testimony. The variance has to do with when Stewart heard about the trial of the case and when she contacted the authorities to offer testimony. We consider these to be minor inconsistencies and find that they did not render her testimony perjurious or incredible as a matter of law. They merely raised a question of credibility which was properly resolved by the trier of fact (see, People v. Cotroneo, 199 A.D.2d 670, 604 N.Y.S.2d 979, lv. denied 83 N.Y.2d 851, 612 N.Y.S.2d 382, 634 N.E.2d 983).

Defendant next urges that County Court erred when it denied his motion to dismiss counts 1 and 2 of the indictment as multiplicitous pursuant to CPL 210.20(1) (in that the first count alleged the offense of manslaughter based on violation of Vehicle and Traffic Law § 1192[2] and the second count the same offence based on violation of Vehicle and Traffic Law § 1192[3] ). An indictment is multiplicitous when "two separate counts * * * charge the same crime" (People v. Kindlon, 217 A.D.2d 793, 794-795, 629 N.Y.S.2d 827, lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 453, 658 N.E.2d 231). Multiplicity does not exist, however, "if each count requires proof of an additional fact that the other does not" (id., at 795, 629 N.Y.S.2d 827). County Court found that violations of subdivisions (2) and (3) of Vehicle and Traffic Law § 1192 were intended to be neither mutually inclusive nor mutually exclusive. While we agree that a defendant may be charged with operating a motor vehicle while in an...