People v. Pascuzzi

• Decision Date: 13 June 2019
• Docket Number: 110585
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyler S. PASCUZZI, Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1367

102 N.Y.S.3d 778

The PEOPLE of the State of New York, Respondent,

v.Tyler S. PASCUZZI, Appellant.

110585

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

Calendar Date: April 23, 2019

Decided and Entered: June 13, 2019

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April 5, 2017 in Albany County, upon a verdict convicting defendant of the crimes of manslaughter in the second degree (two counts) and aggravated vehicular homicide.

Shortly before midnight on July 4, 2015, defendant drove while intoxicated at an extremely high speed on Interstate 90 (hereinafter I–90) in the Town of Guilderland, Albany County and caused a collision that resulted in the deaths of his two passengers, Cody Veverka and Alicia Tamboia (hereinafter collectively referred to as the victims). Defendant was charged with multiple felonies and, after a jury trial, was convicted of manslaughter in the second degree (two counts) and aggravated vehicular homicide. Supreme Court sentenced defendant to a prison term of 8 ? to 25 years on the conviction for aggravated vehicular homicide and lesser concurrent terms on the manslaughter convictions. Defendant appeals.

Initially, defendant contends that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence in that the People failed to prove that he, rather than Veverka, was driving at the time of the collision. Defendant's legal sufficiency challenge is unpreserved for appellate review, as his motion for a trial order of dismissal was not specifically directed at this alleged error (see People v. Novak , 148 A.D.3d 1352, 1353, 50 N.Y.S.3d 577 [2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). Nevertheless, as an essential part of our weight of the evidence review, we must determine whether each element of the crimes for which defendant was convicted was proven beyond a reasonable doubt (see People v. Danielson , 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Gill , 168 A.D.3d 1140, 1140, 90 N.Y.S.3d 392 [2019] ).

The testimony of the People's witnesses established that on the day of the accident, defendant thoroughly cleaned the interior and exterior of his vehicle, a blue high-performance Volkswagen Golf R32, because he intended to sell it the next day. That evening, defendant and his roommates held a party at their apartment in Schenectady County. The victims were among the guests, and most of the attendees, including defendant, were drinking. The group went to a fireworks display at about 9:00 p.m. and then returned to continue the party. Later, defendant and the victims left in defendant's vehicle; no witness noticed who was driving. One of defendant's roommates called defendant and learned that he and the victims were at a bar in the Town of Colonie, Albany County. The roommate testified that he asked defendant whether he was driving and defendant said that he was not.

The bartender who was on duty that evening, a friend of defendant, testified that he had invited defendant to the bar and that defendant and the victims arrived at about 10:30 p.m. and stayed for about an hour. The bartender testified that defendant and the victims each drank one beer. Defendant paid for the drinks by credit card, signing the receipt at 11:28 p.m. The bartender did not see who was driving when the group left.

A witness who had left work in Albany at 11:15 p.m. or 11:20 p.m. testified that he was driving westbound on I–90 at about 70 miles per hour when a blue Volkswagen passed him on the right. The Volkswagen was moving "so fast it was like [the witness] was sitting still," and his car shook as it passed. A short distance ahead, another driver was traveling at about 65 miles per hour when a blue car sped past. This witness smelled burning rubber and estimated that the blue car's speed was at least 120 miles per hour. After it passed, the witness saw "a huge burst of just dust ... and then a bunch of glass [and debris] came flying at our window." At about the same time, another driver, who was traveling at about 70 miles per hour, saw a car "flying by [her]" so fast that "it felt like [she] was standing still." This witness estimated the car's speed at over 100 miles per hour. As she watched, the car struck a green car in the center lane, causing that vehicle to spin off the road into the center median. The speeding vehicle then "clipped" the back of a tractor trailer and "spun out," with the sound of crashing metal and "sparks everywhere."

The trial evidence revealed that at approximately 11:42 p.m., the Volkswagen first struck a green Honda in the rear, sending it off the road, and then struck the rear of a tractor trailer with such force that the Volkswagen was severed into two halves between the front and back seats. The Volkswagen's rear half crossed the median and the center guide rail and came to rest on the eastbound side of the highway, while the front half continued to travel westward until it entered the median and struck the westbound side of the center guide rail.

Defendant and Veverka were found near the front half of the Volkswagen on the western side of the car. Veverka, whose right arm had been amputated, was lying farther to the west than defendant. Resuscitation was attempted, but he died at the scene. Tamboia was found on the eastbound side of the center guide rail, where the rear half of the Volkswagen had traveled. Her injuries were so severe that rescue personnel determined that resuscitation efforts would be futile. Bystanders who assisted defendant before first responders arrived testified that he was initially unconscious, but that he became more responsive and was mumbling incoherently by the time rescue personnel arrived. A paramedic who performed an initial assessment testified that defendant stated his name and responded to some questions with the word "no."

State Trooper Heath McCrindle testified that he first assisted with resuscitation efforts for Veverka and then spoke with defendant, who had been placed on a backboard but had not yet been transferred into an ambulance. McCrindle asked defendant whether anyone else had been in the vehicle, and defendant said no. McCrindle then asked whether defendant had been driving, and defendant said yes. McCrindle said that defendant appeared to be alert and conscious, and looked at McCrindle as he spoke. Two paramedics who attended defendant in the ambulance testified that their examination revealed lacerations on his head, left arm and left shoulder and an abrasion on the right side of his abdomen, but no apparent broken bones or signs of a significant head injury. They testified that defendant was able to follow directions to do such things as opening his eyes and raising his arm. He did not give verbal responses to most of their questions, but did say "no" in response to several questions. When he was asked where he had been that evening, he gave a fragmented response that included the word "fireworks."

At the hospital, State Trooper Jonathan Schroll obtained permission from a nurse to enter defendant's room to ask for his consent to a blood sample. Defendant agreed to allow the test and signed a consent form. Schroll said that defendant appeared to understand the request and had no difficulty holding the pen. The blood sample was obtained at 1:07 a.m., and defendant's blood alcohol content was later determined to be .18%. Schroll left the room and waited nearby with investigator David Burns until about 2:15 a.m., when medical personnel permitted them to speak with defendant again. Burns and Schroll testified that defendant told them that he had been traveling to his apartment before the crash, and gave them that address and his roommates' names. The troopers asked defendant if he had been driving, and defendant said yes. When asked with whom he had been driving, defendant said he was alone. Burns asked defendant whether he had been drinking and partying, and defendant said, "I'm pretty damn sure I was. I'm lying here. Aren't I?" The troopers were then advised that defendant needed further tests and terminated the conversation.

One of Veverka's family members testified that he accessed the photographs in Veverka's phone after it was returned to the family, discovered that the last picture taken showed a car's speedometer, and turned the phone over to police. Data extracted from the phone revealed that this photograph had been taken just before 11:41 p.m. on the night of the crash. The photograph, which was submitted into evidence, depicted a speedometer that matched that of the Volkswagen and displayed a speed of 155 miles per hour.

State Police investigators searched the wreckage of the Volkswagen, took samples for DNA testing and discovered a scrap of red fabric wedged into the front passenger door that corresponded with a tear in Veverka's red underwear. A forensic investigator testified that DNA on the fabric scrap matched that of Veverka. Veverka's DNA was also found on the front passenger seat, the roof over the front passenger seat, the gear shift, the steering wheel, the light switch and in bloodstains on the front passenger airbag and the driver's airbag. The Volkswagen's key had a mix of Veverka's DNA and that of at least one other contributor. The only identifiable DNA from defendant found in the vehicle came from a driver's side panel in the rear of the vehicle. Hairs were collected from the roof behind the driver's seat, but the forensic investigator testified that no hair follicles were included from which DNA could have been obtained, and testing of one sample of the hair itself revealed no DNA. The investigator further testified that DNA was...