People v. Garrow

• Decision Date: 15 July 2010
• Citation: 904 N.Y.S.2d 589,75 A.D.3d 849
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. GARROW, Appellant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 589

75 A.D.3d 849

The PEOPLE of the State of New York, Respondent,

v.Michael J. GARROW, Appellant.

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

July 15, 2010.

Adams & Haggard, L.L.P., Massena (David A. Haggard of counsel), for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: MERCURE, J.P., PETERS, SPAIN, MALONE JR. and KAVANAGH, JJ.

KAVANAGH, J.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered October 5, 2009, upon a verdict convicting defendant of the crime of reckless endangerment in the first degree (two counts).

Defendant was charged with two counts of reckless endangerment in the first degree based on an April 2008 incident in which he rammed his pickup truck into his estranged wife's automobile as the two vehicles were traveling at a high rate of speed across a two-lane bridge in the Town of Chateaugay, Franklin County. Earlier that day, defendant had argued with his wife and followed her and a friend after they left defendant's house in her vehicle. A high-speed chase ensued and, when the vehicles reached the two-lane bridge, defendant drove his truck into the lane for oncoming traffic and, while traveling at speeds that approached 50 miles per hour, sideswiped his wife's vehicle before passing it. The bridge in question rises more than 100 feet above the river below, is protected on both sides by guiderails, and the contact between the two vehicles caused the wife to briefly lose control of her automobile, forcing it close to the guiderail. After the wife regained control of her vehicle, she drove to a nearby police station and reported the incident. Following a jury trial, defendant was convicted as charged and ultimately was sentenced to, among other things, concurrent prison terms of 1 1/2 to 4 1/2 years. Defendant now appeals and we affirm.

Initially, defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review because, in his motion to dismiss, he never specifically identified any deficiencies that he claimed existed in the proof presented by the prosecution ( see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008]; People v. Nesbitt, 69 A.D.3d 1109, 1110-1111, 894 N.Y.S.2d 545 [2010], lv. denied 14 N.Y.3d 843, 901 N.Y.S.2d 149, 927 N.E.2d 570 [2010] ). Further, he did not renew his application after both sides had completed their presentation of proof at trial ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]; People v. Vargas, 72 A.D.3d 1114, 1116, 898 N.Y.S.2d 323 [2010] ).

Moreover, in our view, the verdict was supported by the weightof the credible evidence presented at trial ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Shutter, 72 A.D.3d 1211, 1213, 899 N.Y.S.2d 389 [2010], lv. denied 14 N.Y.3d 892, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010]; People v. Arce, 70 A.D.3d 1196, 1198-1199, 894 N.Y.S.2d 599 [2010] ), which established that, "under circumstances evincing a depraved indifference to human life, [defendant] recklessly engage[d] in conduct which create[d] a grave risk of death to" his wife and her passenger (Penal Law § 120.25). By driving his truck within three feet of his wife's automobile as both vehicles were traveling at a high rate of speed, and then deliberately sideswiping her vehicle as it was crossing a bridge that spanned a steep river valley, defendant necessarily placed the wife and her passenger in mortal danger and exposed them to a grave risk of death. Simply stated, the gravity of the risk attendant to such conduct is, in our view, self-evident and provides ample support for the jury's guilty verdict ( see People v. Payne, 71 A.D.3d 1289, 1290-1291, 897 N.Y.S.2d 292 [2010] ).

As for defendant's challenges to the facial validity of the indictment, they are not preserved ( see People v. Halpin, 261 A.D.2d 647, 647, 691 N.Y.S.2d 579 [1999], lv. denied 93 N.Y.2d 971, 695 N.Y.S.2d 57, 716 N.E.2d 1102 [1999] ) and, in any event, have no merit. Additionally, defendant claims that the charge given the grand jury, especially as it relates to the elements of the crime charged in the indictment, was inadequate. However, it is well settled that such instructions are sufficientso long as they provide "enough information to enable [the grand jury] intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime" ( People v. Calbud, Inc., 49 N.Y.2d 389, 394-395, 426 N.Y.S.2d 238, 402 N.E.2d 1140 [1980]; see People v. Thatcher, 9 A.D.3d 682, 684-685, 779 N.Y.S.2d 818 [2004] ). Here, in addition to giving the statutory definition of reckless endangerment in the first degree ( see People v. Calbud, Inc., 49 N.Y.2d at 395 n. 1, 426 N.Y.S.2d 238, 402 N.E.2d 1140), the District Attorney charged the grand jury as to the state of mind that had to exist for one to have acted with depraved indifference and the special meaning that term has under this state's law ( see People v. Levens, 252 A.D.2d 665, 666-667, 677 N.Y.S.2d 390 [1998], lv. denied 92 N.Y.2d 927, 680 N.Y.S.2d 468, 703 N.E.2d 280 [1998]; compare People v. Huntington, 57 A.D.3d 1238, 1239-1240, 869 N.Y.S.2d 702 [2008] ). Finally, our finding that the evidence presented at trial that resulted in defendant's conviction was not against the weight of the evidence-and, thus, necessarily legally sufficient ( see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] )-precludes any attack on the sufficiency of the evidence presented to the grand jury that resulted in his indictment ( see People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829 [2009], lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922; People v. Gratton, 51 A.D.3d 1219, 1221, 857 N.Y.S.2d 363 [2008], lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008]; see also People v. Peryea, 68 A.D.3d 1144, 1147, 889 N.Y.S.2d 741 [2009], lv. denied 14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942 [2010]; People v. Carpenter, 35 A.D.3d 1092, 1093, 826 N.Y.S.2d 816 [2006] ).

Next, while defendant asserts that he did not receive the effective assistance of counsel at trial, he has not demonstrated " 'the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct" ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). Equally important, while errors may have been made by counsel during the trial, none was so egregious as to prejudice defendant's right to a fair trial ( see People v. Caban, 5 N.Y.3d at 152, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). In particular, defendant claims that counsel should have requested a bill of particulars prior to trial to provide him with additional information regarding the charges pending against him so as to aid counsel in preparing a defense. However, defendant, per a pretrial stipulation, had unrestricted access to the prosecution's file and, given the nature of the charges filed against him, was obviously aware of the conduct upon which those charges were based ( see People v. Brown, 248 A.D.2d 742, 743, 670 N.Y.S.2d 219 [1998], lv. denied 93 N.Y.2d 922, 693 N.Y.S.2d 506, 715 N.E.2d 509 [1999]; compare People v. Fleegle, 295 A.D.2d 760, 763, 745 N.Y.S.2d 224 [2002] ). In addition, as part of the stipulation, County Court agreed to review the grand jury minutes for legal sufficiency and to conduct pretrial hearings to determine if certain evidence the prosecution proposed to present at trial should be suppressed. Also, despite defendant's contentions to the contrary, a Frye hearing was not required because expert testimony offered by the prosecution did not involve any novel procedures or innovative scientific theory ( see People v. Wernick, 89 N.Y.2d 111, 115-116, 651 N.Y.S.2d 392, 674 N.E.2d 322 [1996]; People v. Yates, 290 A.D.2d 888, 890, 736 N.Y.S.2d 798 [2002] ).

Defendant also argues that counsel failed to respond appropriately during the voir dire to statements by three perspective jurors, which suggested that each harbored preconceived notions as to his guilt and were biased against him. However, two of these prospective jurors were dismissed on consent before any evidence was presented at trial, and the third, while at the outset of the voir dire made statements that raised concerns regarding her impartiality, upon clarification gave an unequivocal and credible assurance under oath that she could render an impartial verdict if chosen to serve ( see People v. Molano, 70 A.D.3d 1172, 1174, 894 N.Y.S.2d 589 [2010]; People v. Button, 56 A.D.3d 1043, 1045, 867 N.Y.S.2d 768 [2008], lv. dismissed 12 N.Y.3d 781, 879 N.Y.S.2d 58, 906 N.E.2d 1092 [2009] ). Moreover, counsel, in not objecting to the juror being seated, may well have had sound tactical reasons for not seeking to remove her from the jury panel ( see People v. Colon, 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 [1997]; People v. Sprowal, 84 N.Y.2d 113, 119, 615 N.Y.S.2d 328, 638 N.E.2d 973 [1994] ).

Defendant also argues that counsel erred by failing to object when the arresting officer, on redirect examination, testified tostatements defendant is alleged to have made for which no notice had been given prior to trial ( see CPL 710.30). However, pretrial notice of such statements...