People v. Kibbe

Decision Date05 April 1973
Citation41 A.D.2d 228,342 N.Y.S.2d 386
PartiesPEOPLE of the State of New York, Respondent, v. Barry Warren KIBBE, Appellant. PEOPLE of the State of New York, Respondent, v. Roy A. KRALL, Appellant.
CourtNew York Supreme Court — Appellate Division

Nicholas P. Varlan, Rochester, for appellant Roy A. Krall (Robert S. Beer, Rochester, of counsel).

Jack B. Lazarus, Dist. Atty., Rochester, for respondent (Edward J. Spires, Rochester, of counsel).

Before DEL VECCHIO, Justice Presiding, and MARSH, MOULE, CARDAMONE and HENRY, JJ.

OPINION

HENRY, Justice:

Defendants robbed a helplessly drunken man and left him at the side of a highway where he was struck by an automobile and killed. They were convicted of the crimes of murder, second degree robbery and third degree grand larceny. They both voluntarily confessed to the crimes and the only serious question before us is whether the death was caused by their acts.

Appellants argue that although the evidence might support a finding that defendants evinced a depraved indifference to human life and that they engaged in conduct which created a grave risk of death to Stafford, his death was not caused thereby but was caused by Michael Blake in the operation of his automobile. In our opinion the evidence sufficiently shows that the death was caused by the acts of defendants as well as by the acts of Blake. 'Where separate acts of negligence combine to produce directly a single injury each tort-feasor is responsible for the entire result, even though his act alone might not have caused it' (Hill v. Edmonds, 26 A.D.2d 554, 555, 270 N.Y.S.2d 1020, 1221).

The acts of defendants which combined with the acts of Blake to cause Stafford's death consisted of leaving him in a helplessly drunken condition on the side of the road in an area of open fields where there were no nearby houses and where the road was bordered by snowbanks leaving no place but the roadway in which he could walk. It was apparent that to avoid death from exposure the only place in which he could walk to get help would be in the roadway, where in his condition there existed a grave risk that he would be killed by an automobile.

The court in charging the jury informed them of the applicable law and facts and the jury found each of them guilty.

While we agree with the dissenting justice's statement that the trial court's charge respecting the cause of death was lacking in detail, we do not feel that a new trial should be granted. Appellants have not raised any question as to the sufficiency of the charge on these appeals and their attorneys took no exception and made no request respecting the cause of death at the trial.

In our opinion the charge together with language of the statutes and indictment and the evidence were sufficient to inform the jury on this subject and reversal of the judgments is not required in the interest of justice. (See People v. Palmer, 26 A.D.2d 892, 274 N.Y.S.2d 648, affd. 31 N.Y.2d 1053 (decided February 16, 1973).)

Judgments affirmed.

DEL VECCHIO, J.P., and MARSH and MOULE, JJ., concur.

CARDAMONE, J., dissents in part and votes to reverse conviction for murder and grant a new trial thereon, in opinion.

CARDAMONE, J.: (Dissenting)

The defendants were properly convicted of robbery in the second degree and grand larceny in the third degree. However, I dissent and vote to reverse the murder conviction of both defendants in the interest of justice (CPL § 470.15, subd. 3(c) and subd. 6(a)) because in my view the Trial Court's charge did not define and explain the issue of causation, nor was there sufficient explanation regarding the necessary mental state which the defendants must have been found to possess in order to sustain their conviction for that crime. The insufficiency of the charge deprived these defendants of their fundamental right to a fair trial insofar as these indictments charged them with murder under circumstances evincing 'a depraved indifference to human life', in that they 'recklessly' engaged in conduct which created a grave risk of death to another person, and thereby caused the death of another person (Penal Law § 125.25(2)).

The salient facts on this indictment were that the defendants, Kibbe and Krall, had been drinking all during the afternoon and evening of December 30, 1970 in a bar with the victim Stafford. The bartender testified that the victim Stafford had been 'flashing hundred dollar bills around' and the bartender told him to put them back in his pocket and 'shut him off', took his drink away from him and told Stafford 'you had enough'. He further testified that Stafford asked for a ride to Canandaigua and left with the two defendants between 8:30 and 9:30 p.m. The two defendants took the victim to East River Road and after robbing him, left him on the road approximately one-quarter or one-half mile from the nearest gasoline station or habitation. It was clear and very cold with the wind blowing intermittently. It was not snowing at the time. Shortly after 10:00 p.m. a college senior proceeding north on the East River Road at about 50 miles per hour in a pickup truck saw a person sitting in the road with his hands up in the air and ran over him with his truck. Stafford was dead on arrival at the hospital.

Each defendant has raised for our consideration the issue of whether his conduct caused the victim's death. The Trial Court's instruction on all the elements of the crimes charged occupies only about seven pages of the printed record and contains no direction on the issue of causation and touches on the issue of the defendants' culpable mental state merely by way of a statutory definition unaccompanied by explanation. The Criminal...

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6 cases
  • Henderson v. Kibbe
    • United States
    • United States Supreme Court
    • 16 Mayo 1977
    ...App. 89 (emphasis added). The Appellate Division of the New York Supreme Court affirmed respondent's conviction. People v. Kibbe, 41 App.Div.2d 228, 342 N.Y.S.2d 386 (1973). Although respondent did not challenge the sufficiency of the instructions to the jury in that court, Judge Cardamone ......
  • Kibbe v. Henderson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 5 Mayo 1976
    ...of the charge on appeal and no exceptions to or requests for a charge on causation had been made at trial. People v. Kibbe, 41 A.D.2d 228, 342 N.Y.S. 386 (4th Dept. 1973). Justice Cardamone dissented on the ground that the issue of causation should have been submitted to the jury. The New Y......
  • People v. Kibbe
    • United States
    • New York Court of Appeals
    • 27 Noviembre 1974
    ...'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......
  • People v. Davis
    • United States
    • New York Supreme Court Appellate Division
    • 17 Febrero 1987
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