People v. Kibbe

Citation35 N.Y.2d 407,321 N.E.2d 773,362 N.Y.S.2d 848
Parties, 321 N.E.2d 773 The PEOPLE of the State of New York, Respondent, v. Barry Warren KIBBE and Roy A. Krall, Appellants.
Decision Date27 November 1974
CourtNew York Court of Appeals

Michael R. Wolford, Rochester, for Barry Warren Kibbe, appellant.

Betty D. Friedlander, Waverly, for Roy A. Krall, appellant.

Jack B. Lazarus, Dist. Atty. (Raymond E. Cornelius, Rochester, of counsel), for respondent.


Subdivision 2 of section 125.25 of the Penal Law, Consol.Laws, c. 40, provides, in pertinent part, that '(a) person is guilty of murder' when '(u) nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person'.

The factual setting of the bizarre events of a cold winter night of December 30, 1970, as developed by the testimony, including the voluntary statements of the defendants, reveal the following: During the early evening the defendants were drinking in a Rochester tavern along with the victim, George Stafford. The bartender testified that Stafford was displaying and 'flashing' one hundred dollar bills, was thoroughly intoxicated and was finally 'shut off' because of his inebriated condition. At some time between 8:15 and 8:30 p.m., Stafford inquired if someone would give him a ride to Canandaigua, New York, and the defendants, who, according to their statements, had already decided to steal Stafford's money, agreed to drive him there in Kibbe's automobile. The three men left the bar and proceeded to another bar where Stafford was denied service due to his condition. The defendants and Stafford then walked across the street to a third bar where they were served, and each had another drink or two.

After they left the third bar, the three men entered Kibbe's automobile and began the trip toward Canandaigua. Krall drove the car while Kibbe demanded that Stafford turn over any money he had. In the course of an exchange, Kibbe slapped Stafford several times, took his money, then compelled him to lower his trousers and to take off his shoes to be certain that Stafford had given up all his money; and when they were satisfied that Stafford had no more money on his person, the defendants forced Stafford to exit the Kibbe vehicle.

As he was thrust from the car, Stafford fell onto the shoulder of the rural two-lane highway on which they had been traveling. His trousers were still down around his ankles, his shirt was rolled up towards his chest, he was shoeless and he had also been stripped of any outer clothing. Before the defendants pulled away, Kibbe placed Stafford's shoes and jacket on the shoulder of the highway. Although Stafford's eyeglasses were in the Kibbe vehicle, the defendants, either through inadvertence or perhaps by specific design, did not give them to Stafford before they drove away. It was some time between 9:30 and 9:40 p.m. when Kibbe and Krall abandoned Stafford on the side of the road. The temperature was near zero, and, although it was not snowing at the time, visibility was occasionally obscured by heavy winds which intermittently blew previously fallen snow into the air and across the highway; and there was snow on both sides of the road as a result of previous plowing operations. The structure nearest the point where Stafford was forced from the defendants' car was a gasoline service station situated nearly one half of a mile away on the other side of the highway. There was no artificial illumination on this segment of the rural highway.

At approximately 10:00 p.m. Michael W. Blake, a college student, was operating his pickup truck in the northbound lane of the highway in question. Two cars, which were approaching from the opposite direction, flashed their headlights at Blake's vehicle. Immediately after he had passed the second car, Blake saw Stafford sitting in the road in the middle of the northbound lane with his hands up in the air. Blake stated that he was operating his truck at a speed of approximately 50 miles per hour, and that he 'didn't have time to react' before his vehicle struck Stafford. After he brought his truck to a stop and returned to try to be of assistance to Stafford, Blake observed that the man's trousers were down around his ankles and his shirt was pulled up around his chest. A deputy sheriff called to the accident scene also confirmed the fact that the victim's trousers were around his ankles, and that Stafford was wearing no shoes or jacket.

At the trial, the Medical Examiner of Monroe County testified that death had occurred fairly rapidly from massive head injuries. In addition, he found proof of a high degree of intoxication with a .25%, by weight, of alcohol concentration in the blood.

For their acts, the defendants were convicted of murder, robbery in the second degree and grand larceny in the third degree. However, the defendants basically challenge only their convictions of murder, claiming that the People failed to establish beyond a reasonable doubt that their acts 'caused the death of another', as required by the statute (Penal Law, § 125.25, subd. 2). As framed by the Appellate Division (41 A.D.2d 228, 342 N.Y.S.2d 386) the only serious question raised by these appeals 'is whether the death was caused by (the defendants') acts' (p. 229, 342 N.Y.S.2d p. 387). In answering this question, we are required to determine whether the defendants may be convicted of murder for the occurrences which have been described. They contend that the actions of Blake, the driver of the pickup truck, constituted both an intervening and superseding cause which relieves them of criminal responsibility foR stafford's death. there is, of course, no statutory provision regarding the effect of an intervening cause of injury as it relates to the criminal responsibility of one who sets in motion the machinery which ultimately results in the victim's death; and there is surprisingly little case law dealing with the subject. Moreover,...

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