People v. Grenier

• Decision Date: 07 May 1998
• Citation: 672 N.Y.S.2d 499,250 A.D.2d 874
• Parties: , 1998 N.Y. Slip Op. 4398 The PEOPLE of the State of New York, Respondent, v. George GRENIER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 499

672 N.Y.S.2d 499

250 A.D.2d 874, 1998 N.Y. Slip Op. 4398

The PEOPLE of the State of New York, Respondent, v. George GRENIER, Appellant.

Supreme Court, Appellate Division,

Third Department.

May 7, 1998.

O'Connell & Aronowitz, P.C. (Stephen R. Coffey, of counsel), Albany, for appellant.

Robert M. Carney, District Attorney (Brian D. Casey, of counsel), Schenectady, for respondent.

Before MERCURE, J.P., and WHITE, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from a judgment of the County Court of Schenectady County (Tomlinson, J.), rendered October 22, 1996, upon a verdict convicting defendant of the crimes of assault in the second degree, leaving the scene of a personal injury accident, assault in the third degree and speed not reasonable and prudent.

Defendant was indicted in March 1996 for the crimes of assault in the second degree, reckless endangerment in the first degree, leaving the scene of a personal injury accident, vehicular assault in the second degree, driving while intoxicated, assault in the third degree, speed not reasonable and prudent and speeding. The indictment stemmed from a single-car accident which occurred in the early morning hours of November 23, 1995 in the Town of Duanesburg, Schenectady County.

The evidence adduced at the trial reveals that on November 22, 1995 defendant attended a party at Todd Baldwin's apartment located in the Town of Esperance, Schoharie County. Although defendant's time of arrival and the level of his consumption of alcohol is disputed, it is undisputed that at approximately 11:30 P.M. defendant volunteered to drive to a store to purchase beer. Baldwin, Joshua Burtt and Amber Pahl rode with defendant to the store; Baldwin and Burtt were in the back seat and Pahl occupied the front passenger seat. Defendant drove to a store in Esperance which was closed and then continued on to another store in Duanesburg where defendant and Baldwin bought two 12-packs of beer. Defendant drove back to Baldwin's apartment by a different route, eventually turning onto Mudge Road. Pahl testified that defendant made the turn onto Mudge Road "real fast". Mudge Road was paved with a compact oil and stone composition and gravel shoulders, with one lane in each direction of travel; it has numerous hills and was described by one witness as a "roller coaster". There were no markings or lighting on the roadway and, at the time in question, the condition of the road was dry. There was no posted speed limit on Mudge Road; thus, the speed limit was the maximum speed limit of 55 miles per hour.

The record further reveals that while defendant was driving along Mudge Road, the vehicle spun out of control, left the road, hit a stump, became airborne, flipped over and came to rest on its roof. Burtt and Baldwin were ejected from the car. Pahl was pulled from the vehicle by defendant and placed on the ground alongside the car. Defendant testified that he was aware that Pahl was "hurt bad" and that he first sought assistance at a nearby house, but there was no response. Defendant then traveled by foot to his mother's house located a few miles from the scene of the crash. Notably, he did not call the police and did not return to the accident scene. After emergency personnel arrived, Baldwin, Burtt and Pahl were transported to a hospital in the City of Schenectady, Schenectady County. Burtt was treated for cuts to his face and wrists and Baldwin was treated for a broken jaw. Pahl suffered a traumatic injury to her back which severed her spinal cord, resulting in permanent paralysis of her legs. Defendant was driven by his sister to a hospital in the City of Albany where he was treated for a broken nose; he told hospital personnel that he was injured in a fall. Defendant then spent the remainder of the night at his sister's house in the City of Troy, Rensselaer County, until approximately 8:00 A.M., when he presented himself to the State Police in Duanesburg and made a statement.

At the trial the speed of the vehicle was disputed. Defendant's statement to police indicated that he did not know how fast he was driving; however, he testified that he was driving no faster than 45 miles per hour. Defendant's accident reconstruction expert, John Serth, testified that his speed was approximately 30 miles per hour. State Police Sergeant Daniel Bates, an accident reconstruction expert for the People, testified that the speed of the vehicle was approximately 76 miles per hour. Defendant was convicted of the crimes of assault in the second degree, leaving the scene of a personal injury accident, assault in the third degree and speed not reasonable and prudent. Defendant was sentenced to concurrent terms of imprisonment, as follows: 3 to 6 years for assault in the second degree, 1 1/3 to 4 years for leaving the scene of a personal-injury accident, 90 days in jail for assault in the third degree, and a fine of $100 for speed not reasonable and prudent. Defendant appeals.

We affirm. Initially, we reject defendant's contention that the evidence presented at the trial was insufficient to support convictions of assault in the second and third degree. Evidence will be considered legally sufficient if there is " ' * * * any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged' " (People v. Carey, 241 A.D.2d 748, 660 N.Y.S.2d 886, 889, lv. denied 90 N.Y.2d 1010, 666 N.Y.S.2d 105, 688 N.E.2d 1388, quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). In determining whether a verdict is supported by sufficient evidence, the proof must be viewed in the light most favorable to the prosecution (see, People v. Thompson, 72 N.Y.2d 410, 413, 534 N.Y.S.2d 132, 530 N.E.2d 839; People v. Allah, 71 N.Y.2d 830, 831, 527 N.Y.S.2d 731, 522 N.E.2d 1029; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932). In order to support a conviction on a charge of "reckless" assault in the second degree (Penal Law § 120.05[4] ), the prosecution was required to prove beyond a reasonable doubt that defendant "recklessly caus[ed] serious physical injury to another person by means of a deadly weapon or dangerous instrument" (Penal Law § 120.05[4] ). Likewise, to prove a "reckless" assault in the third degree (Penal Law § 120.00[2] ), the prosecution must similarly establish that defendant "recklessly caused physical injury to another person" (Penal Law § 120.00[2] ). A person acts recklessly when he or she "is aware of and consciously disregards a substantial and unjustifiable risk" (Penal Law § 15.05[3] ). "The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05[3]; see, Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 571 N.Y.S.2d 429, 574 N.E.2d 1035; People v. Moquin, 142 A.D.2d 347, 536 N.Y.S.2d 561, revd. on other grounds 77 N.Y.2d 449, 568 N.Y.S.2d 710, 570 N.E.2d 1059).

Here, testimony was presented that defendant had been drinking as many as seven cans of beer prior to the accident and that he participated in a drinking game known as "3 Man", the object of which was to become intoxicated more quickly. Bates...