People v. Licitra

• Decision Date: 09 July 1979
• Citation: 419 N.Y.S.2d 461,47 N.Y.2d 554,393 N.E.2d 456
• Parties: , 393 N.E.2d 456 The PEOPLE of the State of New York, Appellant, v. Victor LICITRA, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 461

419 N.Y.S.2d 461

47 N.Y.2d 554, 393 N.E.2d 456

The PEOPLE of the State of New York, Appellant, v. Victor LICITRA, Respondent.

Court of Appeals of New York.

July 9, 1979.

Carl A. Vergari, Dist. Atty. (Anthony Joseph Servino, White Plains, of counsel), for appellant

George J. Bellantoni, White Plains, for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

Defendant, Victor Licitra, was convicted of manslaughter in the second degree for recklessly causing the death of his wife (Penal Law, § 125.15, subd. 1). The Appellate Division reversed the conviction and dismissed the indictment, reasoning that the prosecution failed to establish a sufficient case for submission to the jury. The People now appeal from that determination.

On August 26, 1974 White Plains police received three telephone messages reporting an automobile accident with injuries at 11 Benedict Avenue from a male who, on the third call, identified himself as "Licitra". Patrol units were quickly dispatched and Officer Michael Sforza was the first to reach the scene. While attempting to locate the vehicular accident, Sforza suddenly was stopped by defendant, who informed him that there had been an accidental shooting. The officer then accompanied defendant into his home on Benedict Avenue. Upon entering the living room, Sforza observed Mrs. Licitra, defendant's wife, slumped over in a chair, unconscious, blood seeping from a fresh head wound. Directly behind the chair was a .38 caliber Smith and Wesson revolver. Sforza promptly sought to ascertain whether Mrs. Licitra was alive and, after feeling a weak pulse, radioed for medical assistance.

In the interim, Detective Robert Pockl arrived and was let into the house by defendant. The detective asked defendant what had happened, and defendant answered that he was taking the gun out and it went off. Defendant repeated the explanation a number of times and each time supplied a visual description of the event by moving his right hand from the belt area on his left side across his body toward the right. In response to a further question, defendant indicated that he possessed a permit for the gun, which he later produced. He also related that he had been at a firing range earlier in the day but returned home when it began to rain. He stated he was taking the gun out to put it away when it went off.

Defendant was taken to the police station, and that same afternoon was placed under arrest. Five days later Mrs. Licitra died. A Westchester County Grand Jury subsequently returned an indictment charging defendant with one count of manslaughter in the second degree and one count of criminally negligent homicide.

At trial, the prosecution contradicted defendant's version of these events in a number of ways. Specifically, the People produced a witness who related that the firing range defendant claims to have attended was closed on the day in question, and that defendant's membership at the range had expired some six months earlier. Most important, however, was the testimony of Deputy Sheriff Joseph Reich, a ballistics expert, who had undertaken a detailed examination of defendant's revolver. According to Reich, this particular weapon could be fired in either of two ways: the single action method where the hammer is placed in the fully cocked position and three pounds of pull is exerted on the trigger; or, the double action method where the hammer is in the rest position, in which case 10 pounds of pressure on the trigger is required to discharge a bullet. Because of internal safety devices, the weapon would not fire unless the required pressure were exerted on the trigger, even if the hammer were in the cocked position. These safety mechanisms were inspected by Deputy Reich and found to be functioning properly. Thus, this testimony, if credited, establishes that the gun could not have gone off without defendant's finger being on the trigger exerting 3 and perhaps 10 pounds of pressure. The question is whether, on this record, a prima facie case was made out.

At common law, a person committed the crime of involuntary manslaughter, the historic foundation for the modern second degree manslaughter statute, when he caused the death of another through culpable or criminal negligence (see, e. g., People v. Angelo, 246 N.Y. 451, 454-455, 159 N.E. 394, 395; La Fave & Scott, Criminal Law, § 78; 1 Warren, Homicide, § 86, at pp. 420-421). Although the authorities generally agreed that something more than ordinary negligence needed to be shown before criminal liability would attach, the precise degree of risk required was fraught with uncertainty (see La Fave & Scott, Criminal Law, § 30, pp. 211-213; cf. People v. Eckert, 2 N.Y.2d 126, 130-131, 157 N.Y.S.2d 551, 555-556, 138 N.E.2d 794, 797; People v. Buddensieck, 103 N.Y. 487, 9 N.E. 44). Particularly unsettled in the various jurisdictions was the question whether a defendant had to possess a subjective awareness of the risk which caused the death in order to be guilty of manslaughter (compare Commonwealth v. Pierce, 138 Mass. 165 (Holmes, J.), with Bussard v. State, 233 Wis. 11, 288 N.W. 187; see, also, People v. Decina, 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E.2d 799).

Much of the confusion was dissipated with the adoption of the new Penal Law in 1968. In that statute, the Legislature, embracing the approach advocated by the drafters of the Model Penal Code (see People v. Haney, 30 N.Y.2d 328, 332-333, 333 N.Y.S.2d 403, 406-407, 284 N.E.2d 564, 566), created a distinction between criminal negligence and recklessness (Penal Law, § 15.05). A person is chargeable with recklessness when he is aware of a designated risk and consciously disregards it, while he is only criminally negligent if he fails to perceive the risk (Penal Law, § 15.05, subds. 3, 4; People v. Montanez, 41 N.Y.2d 53, 56, 390 N.Y.S.2d 861, 864, 359 N.E.2d 371, 373; People v. Stanfield, 36 N.Y.2d 467, 470, 369 N.Y.S.2d 118, 119, 330 N.E.2d 75, 76). In addition, the Legislature has delineated, so far as possible, the degree of risk necessary for recklessness or criminal negligence: "The risk must be of such nature and degree that disregard thereof (or failure to perceive it) constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law, § 15.05, subds. 3, 4). Thus, to establish manslaughter in the second degree, the prosecution must prove three elements: the creation of a substantial and unjustifiable risk; an awareness and disregard of the risk on the part of defendant; and a resulting death.

Ordinarily, the question whether the...