People v. Hoffman

• Citation: 13 N.Y.S.3d 619,2015 N.Y. Slip Op. 05976,130 A.D.3d 1152
• Decision Date: 09 July 2015
• Docket Number: 107233
• Parties: The PEOPLE of the State of New York, Appellant–Respondent, v. Brendan HOFFMAN, Respondent–Appellant.
• Court: New York Supreme Court Appellate Division

130 A.D.3d 1152
13 N.Y.S.3d 619
2015 N.Y. Slip Op. 05976

The PEOPLE of the State of New York, Appellant–Respondent
v.
Brendan HOFFMAN, Respondent–Appellant.

107233

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

July 9, 2015.

13 N.Y.S.3d 621

Joel E. Abelove, District Attorney, Troy (Vincent O'Neill of counsel), for appellant-respondent.

Danielle Neroni Reilly, Albany, for respondent-appellant.

Before: LAHTINEN, J.P., LYNCH, DEVINE and CLARK, JJ.

Opinion

LYNCH, J.

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Appeals (1) from an order of the County Court of Rensselaer County (Young, J.), rendered April 7, 2014, which granted defendant's motion for a trial order of dismissal, and (2) from a judgment of said court, rendered April 25, 2014, upon a verdict convicting defendant of the crimes of vehicular manslaughter in the first degree (three counts), manslaughter in the second degree, driving while intoxicated (three counts) and leaving the scene of an incident without reporting.

Shortly after midnight on June 28, 2012, defendant and Christopher Baker (hereinafter the victim), who had both been drinking beer and smoking marihuana throughout the evening, left the victim's home in a Dodge Neon registered to defendant's father. As the car proceeded southbound on Cranston Hill Road in the Town of Stephentown, Rensselaer County, a northbound driver, Levi Borghi, observed the car cross the double yellow line, swerve into the southbound lane, strike a culvert pipe and flip several times before landing on its roof. The victim was ejected from the car. Borghi approached and observed defendant within the upended car, unconscious and stretched on the roof. Borghi called 911, but before help arrived, defendant woke and was able to crawl from the vehicle. Amber Walker, the sister of defendant's girlfriend, happened to be driving past. Walker stopped her car, recognized defendant,

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and drove him from the

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scene. Before leaving, defendant did not tell Borghi or Walker that the victim had been in the car with him. First responders arrived and Borghi told them that defendant had just left. Rensselaer County deputy sheriffs on the scene called to have the car towed and the area was cleared of glass and debris. In the meantime, the victim's family learned of the accident and, concerned that he may have been in the car, began searching for him in the darkness. Sadly, a sheriff's deputy found the victim's body at approximately 5:15 a.m. in some brush about 20 feet from the edge of the road.

Defendant was thereafter charged in a 13–count indictment with three counts each of aggravated vehicular homicide, vehicular manslaughter in the first degree and driving while intoxicated, and one count each of manslaughter in the second degree, leaving the scene of an incident without reporting, reckless driving and operating a motor vehicle in violation of the conditions of a conditional license. After County Court severed the final charge pursuant to CPL 200.60, the case proceeded to a jury trial, where defendant was convicted on all remaining counts. The court subsequently granted defendant's renewed motion for a trial order of dismissal and set aside the verdict as to the three counts of aggravated vehicular homicide (counts 1, 4 and 7) and the single count of reckless driving (count 12). Defendant was then sentenced to an aggregate prison term of 5 to 15 years. The People now appeal from County Court's order dismissing four counts of the indictment and defendant appeals from the judgment of conviction.

Defendant first argues that several of the counts in the indictment should have been dismissed as multiplicitous. An indictment “is multiplicitous when a single offense is charged in more than one count” (People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ). Accordingly, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” (People v. Quinones, 8 A.D.3d 589, 589–590, 779 N.Y.S.2d 131 [2004]lv. denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004] ; accord People v. Moore, 59 A.D.3d 809, 810–811, 874 N.Y.S.2d 283 [2009] ). “Where each count requires proof of an element not essential to the other, [however,] an indictment is not multiplicitous” (People v. Henson, 263 A.D.2d 550, 550, 692 N.Y.S.2d 778 [1999] [citations omitted]; lv. denied 93 N.Y.2d 1044, 697 N.Y.S.2d 876, 720 N.E.2d 96 [1999] ; see People v. Kindlon, 217 A.D.2d 793, 795, 629 N.Y.S.2d 827 [1995], lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 453, 658 N.E.2d 231 [1995] ).

Counts 2, 5 and 8 of the indictment charged defendant with vehicular manslaughter in the first degree pursuant to Penal Law § 125.13(3), which requires proof that defendant (1) committed

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the crime of vehicular manslaughter in the second degree and (2) had been convicted within the preceding 10 years of violating Vehicle and Traffic Law § 1192 (see Penal Law § 125.13[3] ). Counts 1, 4 and 7 of the indictment charged defendant with aggravated vehicular homicide pursuant to Penal Law § 125.14(3), which requires proof that defendant (1) committed the crime of vehicular manslaughter in the second degree, (2) engaged in reckless driving and (3) had previously been convicted of a Vehicle and Traffic Law § 1192 violation within the preceding 10 years. As relevant here, a person is guilty of vehicular manslaughter in the second degree when he or she operates a motor vehicle in violation of

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Vehicle and Traffic Law § 1192(2), (3) or (4–a) thereby causing the death of another person (see Penal Law § 125.12[1] ).

In our view, these charges were predicated upon the same statutory provisions (see Penal Law §§ 125.13[3] ; 125.14[3] ), act and victim, differing only in the nature of defendant's impairment. In this regard, defendant was alleged to have been driving while per se intoxicated (counts 1 and 2), in an intoxicated condition (counts 4 and 5) and impaired by a combination of drugs or alcohol and drugs (counts 7 and 8) (see Vehicle and Traffic Law § 1192[2], [3], [4–a] ). The essential elements of both crimes do not address the specific manner in which defendant was impaired; rather, they include only a single offense of some form of impaired driving as defined within Penal Law § 125.12(1). Accordingly, counts 4 and 7 should have been dismissed as multiplicitous of count 1, and counts 5 and 8 must be dismissed as multiplicitous of count 2 (see People v. Demetsenare, 243 A.D.2d 777, 779–780, 663 N.Y.S.2d 299 [1997], lv. denied 91 N.Y.2d 833, 667 N.Y.S.2d 687, 690 N.E.2d 496 [1997] ; People v. Senisi, 196 A.D.2d 376, 382, 610 N.Y.S.2d 542 [1994] ; see also People v. Barnes, 64 A.D.3d 890, 892–893, 883 N.Y.S.2d 329 [2009], lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009] ).¹

Next, we turn to the parties' arguments with regard to the weight and sufficiency of the evidence presented to the jury. First, the People contend that County Court should not have granted defendant's motion to dismiss the counts charging aggravated vehicular homicide (counts 1, 4 and 7) and reckless driving (count 12). As set forth above, the crime of aggravated vehicular homicide requires proof of reckless driving as defined by the Vehicle and Traffic Law § 1212 (see Penal Law § 125.14 ). Relevant here, reckless driving is defined as “driving or using any motor vehicle ... in a manner which unreasonably

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interferes with the free and proper use of the public...