People v. Goldblatt

• Decision Date: 30 August 2012
• Citation: People v. Goldblatt, 2012 NY Slip Op 6093, 98 A.D.3d 817, 950 N.Y.S.2d 210 (N.Y. App. Div. 2012)
• Parties: The PEOPLE of the State of New York, Respondent, v. Peter B. GOLDBLATT, Appellant.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 817

950 N.Y.S.2d 210

2012 N.Y. Slip Op. 06093

The PEOPLE of the State of New York, Respondent,

v.Peter B. GOLDBLATT, Appellant.

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

Aug. 30, 2012.

Cooley, LLP, New York City (Reed A. Smith of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: LAHTINEN, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

KAVANAGH, J.

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered February 4, 2011, upon a verdict convicting defendant of the crimes of aggravatedvehicular homicide, vehicular manslaughter in the first degree, manslaughter in the second degree (two counts), assault in the third degree, reckless endangerment in the second degree, driving while intoxicated (two counts) and reckless driving.

At about 11:20 P.M. on June 24, 2010, defendant was driving a sport utility vehicle south on Golf Course Road in the Town of Warrensburg, Warren County. Seven individuals who worked at nearby Camp Echo Lake were standing off the west side of the road at a trailhead. Defendant's vehicle, traveling at an estimated speed of 55 miles per hour in a 40 mile-per-hour zone, went partially off the road striking and killing two young adults. When State Police arrived, they observed defendant to be visibly intoxicated. He initially refused to take a breath test, but submitted to a test about two hours later, recording a blood alcohol content of .11%, which was extrapolated to have been approximately .158% (nearly twice the legal limit) at the time of the accident. Defendant was indicted for aggravated vehicular homicide, vehicular manslaughter in the first degree, manslaughter in the second degree (two counts), reckless driving, driving while intoxicated (two counts), assault in the third degree, and reckless endangerment in the second degree. A jury convicted him of all counts and County Court sentenced him to concurrent prison terms, the longest of which was 8 1/3 to 25 years for the aggravated vehicular homicide conviction. Defendant appeals, arguing that his conviction of the top count of the indictment—aggravated vehicular homicide—was not supported by legally sufficient evidence and was against the weight of the evidence, and that County Court erred in its jury instructions regarding that count.

The crime of aggravated vehicular homicide was added to the Penal Law in 2007 ( see L. 2007 ch. 345, § 2) as part of legislation creating stricter laws with strong penalties for those who cause personal injury or death to others when driving while intoxicated ( see Senate Introducer Mem in Support, 2007 McKinney's Session Laws of N.Y., at 1857–1858). The elements of aggravated vehicular homicide are statutorily defined as being comprised of two existing crimes, reckless driving ( seeVehicle and Traffic Law § 1212) and vehicular manslaughter in the second degree ( seePenal Law § 125.12), as well as any one of seven exacerbating factors, which, as relevant here, include “caus[ing] the death of more than one other person” (Penal Law § 125.14[4] ).¹ It is undisputed that the evidence sufficiently established vehicular manslaughter in the second degree and the exacerbating factor of more than one death. Defendant argues, however, that the evidence did not demonstrate that he engaged in reckless driving.

Reckless driving consists of “driving or using any motor vehicle ... in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway” (Vehicle and Traffic Law § 1212). It is a misdemeanor with a maximum punishment for a first offense of a $300 fine and 30 days in jail ( seeVehicle and Traffic Law §§ 1212, 1801).² It has long been recognized that reckless driving “calls for evidence showing something more than mere negligence” ( People v. Grogan, 260 N.Y. 138, 143, 183 N.E. 273 [1932];see Matter of Sheridan v. Fletcher, 270 A.D. 29, 32, 58 N.Y.S.2d 466 [1945] ). Determining whether conduct rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road ( see People v. Grogan, 260 N.Y. at 143–144, 183 N.E. 273;People v. Lamphear, 35 A.D.2d 305, 308, 316 N.Y.S.2d 113 [1970];see generally Carrieri, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 62A, Vehicle and Traffic Law § 1212, at 47–48; Campbell, Fisher and Mansfield, Defense of Speeding, Reckless Driving and Vehicular Homicide § 13.02; cf. People v. Frisbie, 114 A.D.2d 587, 588–589, 494 N.Y.S.2d 196 [1985] ). Thus, although violating the speed limit may not be enough by itself, speed plus crossing into the passing lane when the view of oncoming traffic is not clear is sufficient ( see People v. Armlin, 6 N.Y.2d 231, 232–233, 189 N.Y.S.2d 179, 160 N.E.2d 478 [1959];People v. Lamphear, 35 A.D.2d at 308–309, 316 N.Y.S.2d 113). Similarly, merely making a U–turn would not constitute reckless driving, but doing so across three lanes of traffic on a parkway could be considered reckless ( see People v. McGrantham, 12 N.Y.3d 892, 893–894, 885 N.Y.S.2d 244, 913 N.E.2d 936 [2009] ).

We have previously indicated that the voluntary use of alcohol or drugs before driving may be considered as a factor in the reckless driving analysis ( see People v. Bohacek, 95 A.D.3d 1592, 1594–1595, 945 N.Y.S.2d 460 [2012];People v. Ladd, 224 A.D.2d 881, 882, 638 N.Y.S.2d 512 [1996],affd.89 N.Y.2d 893, 653 N.Y.S.2d 259, 675 N.E.2d 1211 [1996] ). Nonetheless, it is the manner of operation that is the important inquiry. “One can drive recklessly without being intoxicated and, [conversely], one can drive while intoxicated without being reckless” ( People v. Starowicz, 207 A.D.2d 994, 994, 617 N.Y.S.2d 100 [1994],lv. denied84 N.Y.2d 1016, 622 N.Y.S.2d 927, 647 N.E.2d 133 [1994] [citations omitted] ). In addition, where, as here, reckless driving is an element that elevates a crime, the focus for the reckless driving element is the manner of operation. Thus, we consider the legal sufficiency and weight of the evidence regarding the reckless driving element of the crime of aggravated vehicular homicide by such standard.

Here, when the proof is viewed in the light most favorable to the People ( see People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011];People v. Diaz, 15 N.Y.3d 764, 765, 907 N.Y.S.2d 152, 933 N.E.2d 751 [2010] ), there was a confluence of factors such that reckless driving was established by legally sufficient proof. There was proof that defendant disregarded a sign warning of an approaching reduced speed zone and he entered the subsequent speed zone without reducing his speed toward 40 miles per hour as required, but instead continued at about 55 miles per hour. He failed to maintain his vehicle on the road; it moved toward the shoulder and continued across the paved shoulder onto the gravel and sand next to the road and into the area where the pedestrians were standing. There was no apparent effort to slow the vehicle as it went off the road onto the gravel and grass, or to correct the errant path. There was testimony that no pedestrian in the group stood on any paved part of the roadway at any time and that they had moved at least several steps from the road prior to the accident. One of the individuals who was struck and killed was initially standing on a cement lip away from the fog line and asphalt shoulder, and she and the others walked even further from the road toward the trees when one member of the group announced, upon seeing defendant's vehicle about a quarter of a mile away, that a vehicle was approaching. It was estimated that the closest person to the road at the moment of impact was at least five feet off the paved portion.

The group of pedestrians had just come from a “Mad Hatter” party sponsored by the camp where they worked, and their festive attire included a bright orange hat and aluminum foil. One of the individuals who was struck had glow stick rings through the elongated piercings of his ears. Another individual in the group was in the process of lighting a cigarette. It was dry and clear with nearly a full moon lighting the sky, and a lamppost was in the vicinity. Despite good visibility and the pedestrians' bright clothing and glowing objects, defendant failed to observe them. In fact, he told police that they were in the road and that one was on a bicycle (which was not established by any evidence). Indeed, items belonging to the victims, as well as pieces of defendant's vehicle, were found well off the roadway by investigators. Considered cumulatively, there was ample proof of reckless driving by the combination of excessive speed, going off the road, the distance off the road, no effort to slow down once off the road, and failing to see the pedestrians despite their bright attire and the prevailing clear conditions.

Turning to defendant's weight of the evidence argument, since an acquittal on the aggravated vehicular homicide count would not have been unreasonable, we must weigh the conflicting testimony and review the rational inferences that may be drawn from the evidence in determining whether the jury justifiably found defendant guilty of this count beyond a reasonable doubt ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). Defendant's expert, an engineer, testified that the street lamps in the vicinity made it more difficult to see anything off the road and he also opined that the victims were actually in the roadway when they were hit. This evidence, as well as other proof presented by defendant, created credibility issues that the jury resolved against defendant. Upon a review of...