People v. Fitzgerald

• Decision Date: 03 July 1978
• Citation: 407 N.Y.S.2d 211,62 A.D.2d 885
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., Appellant, v. Michael FITZGERALD, Respondent.

Page 211

407 N.Y.S.2d 211

62 A.D.2d 885

The PEOPLE, etc., Appellant, v. Michael FITZGERALD, Respondent.

Supreme Court, Appellate Division, Second Department.

July 3, 1978.

Carl A. Vergari, Dist. Atty., White Plains (B. Anthony Morosco, White Plains, of counsel), for appellant.

Keegan, Keegan & Tully, White Plains (Andrew W. Tully, Jr., White Plains, of counsel), for respondent.

Before TITONE, J. P., and RABIN, SHAPIRO and O'CONNOR, JJ.

SHAPIRO, Justice.

This is an appeal by the People from so much of an order of the County Court, Westchester County, as, upon reargument, adhered to the prior determination which dismissed two counts of the indictment, one count charging criminally negligent homicide with respect to the death of one Cara Pollini, and one count charging assault in the third degree with respect to injuries sustained by one Susan Bassett, both arising out of the same automobile incident. The remaining counts, charging the defendant with leaving the scene of an accident, were not dismissed and are not part of this appeal.

Judge COUZENS dismissed the two counts of the indictment upon the grounds that (1) the evidence before the Grand Jury was legally insufficient to sustain those counts of the indictment and (2) they were legally insufficient on their face. We do not reach the question of the legal sufficiency of the testimony before the Grand Jury because we affirm the determination of the County Court on the second-stated ground.

The counts of the indictment under review are:

"First Count

"The Grand Jury of the County of Westchester, by this Indictment, accuse the defendant of the crime of Criminally Negligent Homicide, committed as follows:

"The defendant, in the Village of Briarcliff Manor, County of Westchester and State of New York, on or about December 22, 1975, with criminal negligence, caused the death of one Cara Pollini, while operating a 1967 Ford automobile and striking said Cara Pollini with said automobile.

"Second Count

"The Grand Jury of the County of Westchester, by this Indictment, accuse the defendant of the crime of Assault In The Third Degree, committed as follows:

"The defendant, in the Village of Briarcliff Manor, County of Westchester and State of New York, on or about December 22, 1975, with criminal negligence, did cause physical injury to one Susan Bassett, by means of a dangerous instrument, to wit, a 1967 Ford automobile."

The provisions of the Penal Law applicable to the crimes allegedly charged in counts one and two are:

" § 120.00 Assault in the third degree.

"A person is guilty of assault in the third degree when

"3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument" (emphasis supplied).

" § 125.10 Criminally negligent homicide.

"A person is guilty of criminally negligent homicide when, With criminal negligence, he causes the death of another person" (emphasis supplied).

" § 15.05

"1. 'Criminal negligence.' A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he Fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation" (emphasis supplied).

Subdivision 7 of CPL 200.50 provides that an indictment must contain:

"A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation". ^*

The statutes from which CPL 200.50 (subd. 7) is derived (former Code Crim. Proc., §§ 268, 275, 276, 280, 284) were not as comprehensive since they merely required that an indictment contain a plain and concise statement of the act constituting the crime without unnecessary repetition (People v. Cook, 81 Misc.2d 235, 365 N.Y.S.2d 611); but even under their less restrictive provisions, the court in People v. Siefert, 4 A.D.2d 41, 43, 162 N.Y.S.2d 813, 816 held:

" 'An indictment predicated upon a statute must state all the facts and circumstances necessary to constitute the offense, so as to bring the indicted party precisely within the meaning of the statutory provision' * * *

"It is fundamental that the indictment must state the crime charged and the particular acts constituting the crime".

In People v. Schultz, 301 N.Y. 495, 497, 95 N.E.2d 815, 816, the court said:

" 'that an indictment and an information must state the crime with which the defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law' (People v. Zambounis, 251 N.Y. 94, 96, 97, 167 N.E. 183, and see People v. Grogan, 260 N.Y. 138, 142, 183 N.E. 273)."

Based upon precisely that consideration, but operating under the authority of CPL 200.50 (subd. 7), the Appellate Division, Third Judicial Department, in People v. Barnes, 44 A.D.2d 740, 354 N.Y.S.2d 459, held an indictment, substantially similar to the one before us, insufficient as a matter of law. The court said:

"On May 1, 1973 the Grand Jury indicted defendant for manslaughter in the second degree, criminally negligent homicide and operating a motor vehicle under the influence of alcohol. On motion of defendant the first two counts of the indictment were dismissed without prejudice to the filing of a new valid indictment. The basis for the court's dismissal was that the indictment failed to set forth facts supporting the elements of the offenses charged and the conduct of the defendant constituting the charges. The first count of the indictment charges. The first count of the indictment charges defendant with the crime of manslaughter in the second degree in violation of section 125.15 of the Penal Law in that 'on or about March 11, 1973, at or about 9:30 P.M. at the 600 block of South Aurora Street in the City of Ithaca, County of Tompkins and State of New York, the said JOHN G. BARNES did recklessly cause the death of MARY JUDITH KELEMAN by operating a motor vehicle in a generally southerly direction on South Aurora Street and there causing the same to collide with an automobile operated by MARY JUDITH KELEMAN.' The second count charges defendant with criminally negligent homicide in violation of section 125.10 of such law by merely repeating the averments of the first count and substituting the words 'acting with criminal negligence' for the word 'recklessly'. A reading of the indictment clearly demonstrates that there are no facts set forth showing the acts or conduct of defendant which constitute the crimes charged. It is significant that we are not dealing with the now abolished 'short form' of indictment, but with an indictment that must conform with CPL 200.50 (subd. 7), which requires a concise recitation of the facts supporting every element of the offense charged to apprise defendant of the objectionable conduct (see People v. Clough, 43 A.D.2d 451, 353 N.Y.S.2d 260). In the instant indictment the charges are alleged by a recitation of the language of the statute. Under the existing law this is insufficient and any defect in the indictment may not be remedied by a bill of particulars. Consequently, in our view, the court properly dismissed the first and second counts of the indictment."

The fact that an indictment confines itself to the language of the statute does not, per se, invalidate it if it contains "all that is essential to charge the crimes and to apprise the accused of the nature of the crime charged" (People v. Barton, 51 A.D.2d 1044, 381 N.Y.S.2d 329); but "where analogous offenses at common law require more particular allegations, or where such language would not fairly inform the accused of the nature of the charge preferred against him, the act charged must be defined with greater particularity" (People v. Farson, 244 N.Y. 413, 417, 155 N.E. 724, 725). That is precisely the situation here, for merely stating in an indictment that death was caused by, or an assault occasioned through, "criminal negligence", as do the two counts here under attack, certainly fails to apprise the defendant of the Facts supporting those charges.

In People v. Soto, 52 A.D.2d 852, 382 N.Y.S.2d 810, aff'd, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907, this court upheld a conviction based upon an indictment worded similarly to the one here under consideration. The insufficiency in that case was not raised at the trial level. Despite that fact, Mr. Justice HOPKINS dissented, saying (52 A.D.2d at pp. 852-853, 382 N.Y.S.2d at p. 811):

"The defendant was convicted after a jury...