People v. Senisi

• Decision Date: 11 April 1994
• Citation: 196 A.D.2d 376,610 N.Y.S.2d 542
• Parties: The PEOPLE, etc., Respondent, v. Vincent SENISI, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 542

610 N.Y.S.2d 542

196 A.D.2d 376

The PEOPLE, etc., Respondent, v. Vincent SENISI, Jr., Appellant.

Supreme Court, Appellate Division,

Second Department.

April 11, 1994.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York City (Herald Price Fahringer and Diarmuid White, of counsel), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Michael J. Miller, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, COPERTINO and PIZZUTO, JJ.

BRACKEN, Justice Presiding.

The defendant, Vincent Senisi, Jr., and his codefendant Dennis Killane (see, People v. Killane, 203 A.D.2d 386, 610 N.Y.S.2d 547 [decided herewith] were charged in the first count of Suffolk County Indictment Number 1982/89 with the crime of manslaughter in the second degree (see, Penal Law § 125.15[1]. Unlike Killane, Senisi was also charged with a second count of manslaughter in the second degree, based on the same incident and based on the same section of the Penal Law (see, Penal Law § 125.15[1]. Both the first and the second counts of the indictment charged that on October 8, 1989, Senisi recklessly caused the death of the victim, Jeanine Tolentino, on Route 110 in Suffolk County. On this appeal, we conclude that while these two counts are multiplicitous in that they charge Senisi with the same crime, such multiplicity does not alter the fact that the evidence was both legally and factually sufficient (see, CPL 470.15[5]; 470.20[2]; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672) to support the County Court's verdict finding Senisi guilty of the lesser-included offense of criminally negligent homicide (Penal Law § 125.10; see also, Penal Law § 15.05[4] under both of these counts. We modify the judgment appealed from in the interest of justice only to the extent necessary in order to remedy the technical defect inherent in the multiplicity of the first two counts and the technical defect in the County Court's pronouncement of sentence.

Senisi's primary argument on appeal is that the verdict of the County Court is against the weight of the evidence. In advancing this argument, Senisi relies heavily on the proposition that a conviction for criminally negligent homicide cannot be based on proof of excessive speed alone (see, e.g., People v. Paris, 138 A.D.2d 534, 536, 525 N.Y.S.2d 913; citing, People v. Eckert, 2 N.Y.2d 126, 157 N.Y.S.2d 551, 138 N.E.2d 794; and People v. Walker, 296 N.Y. 740, 70 N.E.2d 548; see also, People v. Perry, 70 N.Y.2d 626, 518 N.Y.S.2d 957, 512 N.E.2d 540; People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785; People v. Grogan, 260 N.Y. 138, 143-144, 183 N.E. 273; People v. Fink, 18 A.D.2d 220, 238 N.Y.S.2d 847). The People respond by noting that in this case there was proof not only of Senisi's use of excessive speed, but also of Senisi having engaged in a "drag race", as that term is commonly understood. Thus, the People contend that there was legally and factually sufficient evidence to support the verdict (see, People v. Ricardo B., 73 N.Y.2d 228, 235-236, 538 N.Y.S.2d 796, 535 N.E.2d 1336; People v. Soto, 44 N.Y.2d 683, 405 N.Y.S.2d 434, 376 N.E.2d 907; People v. Abbott, 84 A.D.2d 11, 445 N.Y.S.2d 344). We agree with the People that the evidence was sufficient to support the County Court's finding of liability for criminally negligent homicide.

One must be careful not to misunderstand the meaning of the statement made by the Court of Appeals in People v. Eckert, 2 N.Y.2d 126, supra, at 130, 157 N.Y.S.2d 551, 138 N.E.2d 794 to the effect that a "conviction under [former Penal Law § 1053-a] cannot be based solely on proof of excessive speed" (People v. Eckert, supra, citing, People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785; People v. Walker, 296 N.Y. 740, 70 N.E.2d 548). In our view, what this statement means is that the mere infraction of the applicable speed limit does not, in and of itself, constitute an act of criminal negligence (Penal Law § 15.05[4]. We do not take this statement to mean that in order to sustain a conviction for criminally negligent homicide in a case in which the principal item of evidence consists of proof of the defendant's use of excessive speed, the prosecution must always prove some other traffic law violation unrelated to the defendant's rate of speed.

While it may be accurate to say that an infraction of the posted speed limit does not ipso facto establish criminal negligence, it would not be accurate to say that a trier of fact may never conclude that in light of the time, the place, the weather conditions, and in light of any number of other factors which might be established at the trial, the defendant's use of excessive speed was criminally negligent. We believe that there are cases, including the present one, where the trier of fact may, in light of all the circumstances presented, conclude that the defendant's use of excessive speed constituted criminal negligence (see, e.g., People v. Devoe, 246 N.Y. 636, 637, 159 N.E. 682 [driving at rate of 46 miles per hour constituted recklessness in circumstances described]. In other words, while proof of excessive speed might not automatically constitute proof either of the culpable mental state of recklessness or of the culpable mental state of negligence, such proof does supply a basis from which the trier of fact may infer the existence of either of the two culpable mental states in light of all the other circumstances presented (see, People v. Devoe, supra; see also, People v. Sticht, 139 N.Y.S.2d 667; People v. Mason, 198 Misc. 452, 97 N.Y.S.2d 462; People v. Whitby, 44 N.Y.S.2d 76).

The proposition so heavily relied upon by the defendant, that is, the proposition that proof of excessive speed alone may not serve as the basis for a conviction of criminally negligent homicide, is one which properly understood might prove to be decisive only in that extremely rare case where the evidence adduced by the prosecution in fact fails to prove anything relevant aside from excessive speed. It is difficult to imagine a case where there would be absolutely no evidence as to the presence or position of other vehicles, the presence or position of pedestrians, the condition or width of the roadway, the condition of the defendant's car, the lighting conditions, the presence or absence of obstructions to the defendant's field of vision, the physical condition of the defendant himself, the rate of acceleration, or any of a myriad of other factors which courts have identified as being relevant (see, e.g., People v. Haney, 30 N.Y.2d 328, 335-336, 333 N.Y.S.2d 403, 284 N.E.2d 564; People v. Battease, 124 A.D.2d 807, 509 N.Y.S.2d 39; People v. Prentice, 91 A.D.2d 1202, 459 N.Y.S.2d 194; Matter of Fake v. Macduff, 281 App.Div. 630, 121 N.Y.S.2d 346; People v. Mason, 198 Misc. 452, 97 N.Y.S.2d 462; 61A C.J.S. Motor Vehicles, § 609).

Even if we were to accept the defendant's hypothesis that in order to sustain a conviction for criminally negligent homicide (see, Penal Law § 125.10), the prosecution was duty bound to prove a species of negligence separate and apart from that which was manifested by the defendant's use of excessive speed, we would conclude without difficulty that the prosecution has done so in this case. The weight of the evidence establishes that Mr. Senisi not only sped, but that he did so while his attention was unduly distracted as a result of his having become engaged in what is commonly known as a "drag race" (see, People v. Ricardo B., 73 N.Y.2d 228, 538 N.Y.S.2d 796, 535 N.E.2d 1336, supra; People v. Abbott, 84 A.D.2d 11, 445 N.Y.S.2d 344, supra ). Thus, the present case is clearly not one where the prosecution attempted to fix criminal liability based on proof of excessive speed alone.

The defendant's argument on this score gathers a modicum of greater force as a result of the particular way in which the indictment in this case was drafted. As we noted above, both the first and the second counts charged the defendant with reckless manslaughter (see, Penal Law § 125.15[1]. Both counts charged him in connection with the death of Jeanine Tolentino on October 8, 1989, on Route 110 in Suffolk County. Insofar as they apply to Senisi, the only distinction between the first and the second count was that the first count recited that Senisi had been reckless "while engaged in an illegal speed contest", whereas the second count recited that Senisi had been reckless "while driving * * * at an excessive rate of speed". Senisi now argues that because these two specifications of recklessness were severed from one another in the drafting of the indictment, the County Court had no right to consider the two specifications of recklessness together in reaching its verdict. We disagree.

Contrary to Senisi's contention, the County Court was not precluded from considering the prosecution's proof of excessive speed in connection with the first count, or from considering the prosecution's proof of a speed contest in connection with the second count. Both manifestations of negligence (the use of excessive speed; the participation in a speed contest) could have been recited in one single count (see, e.g., People v. Rooney, 57 N.Y.2d 822, 455 N.Y.S.2d 595, 441 N.E.2d 1113) and such non-essential factual recitations do not, in the absence of prejudice, limit the nature of the otherwise relevant, material, and competent evidence which the People may present (see, People v. Muniz, 74 N.Y.2d 464, 468, 548 N.Y.S.2d 633, 547 N.E.2d 1160; People v. Spann, 56 N.Y.2d 469, 452 N.Y.S.2d 869, 438 N.E.2d 402; People v. Feldman, 50 N.Y.2d 500, 429 N.Y.S.2d 602, 407 N.E.2d 448; see also, People v. Butler, 191 A.D.2d 503, 594 N.Y.S.2d 338; People v. Brown, 196 A.D.2d 428, 601 N.Y.S.2d 282 [1st Dept., Aug. 12, 1993]; People v. Brammer, 189 A.D.2d 885, 592 N.Y.S.2d 761; People v. Steadman, 186 A.D.2d 693, 588 N.Y.S.2d 591; People v. Hobbs, 185 A.D.2d 619, 586 N.Y.S.2d 73; People v. Wong, 182 A.D.2d 98, 109-110, ...