People v. Smith

• Decision Date: 15 November 2001
• Citation: 288 A.D.2d 629,732 N.Y.S.2d 675
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>DONALD F. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

288 A.D.2d 629

732 N.Y.S.2d 675

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.DONALD F. SMITH, Appellant.

Decided November 15, 2001.

Mercure, Spain, Carpinello and Mugglin, JJ., concur.

Cardona, P. J.

In the early morning hours of September 21, 1998, defendant, while driving on Albany Shaker Road in the Town of Colonie, Albany County, struck and killed Jeffrey Deters who was walking off the paved roadway in an adjacent grassy area. The victim's body was discovered at approximately 8:40 A.M. In the evening of that same day, defendant telephoned the Colonie police and told a police officer that he had watched the evening news and wondered if he might have been involved in the hit and run reported therein. Defendant brought his vehicle to the station and gave a sworn statement that, on the evening of September 20, 1998, he checked on his "camp" in the Adirondack Mountains and left for home around 11:30 P.M. Defendant claimed that he got lost and, at one point, "something came out of some woods from [his] right side" and he heard a "bang." Defendant further claimed that he stopped his vehicle, looked out of his back window and saw nothing. He stated that he "thought maybe a deer had come out of the woods and maybe went back in after hitting [him]." A later police investigation revealed that defendant lied about being at his camp and had been drinking at a bar that evening. The proof indicated that defendant asked the bartender to lie to the police and deny that he was there.

At trial, the People sought to prove that, while intoxicated, defendant drove off the side of the road, struck the victim and then left the scene without ascertaining the victim's condition. Following a jury trial, defendant was convicted of manslaughter in the second degree, vehicular manslaughter in the second degree and felony leaving the scene of an incident without reporting. County Court sentenced defendant to concurrent indeterminate terms of imprisonment of 5 to 15 years for manslaughter in the second degree, 2 1/3 to 7 years for vehicular manslaughter in the second degree and 1 1/3 to 4 years for leaving the scene of an incident without reporting. Defendant appeals.

Initially, we are unpersuaded that the evidence was legally insufficient to support defendant's convictions. The essence of defendant's argument is that while the evidence established that he struck the victim with his vehicle, there was insufficient proof that defendant drove his vehicle off the main part of the road, was intoxicated at the time he struck the victim, or knew that he had hit a person as opposed to an animal. Turning first to the location of defendant's vehicle at the time of the collision, a certified accident reconstruction police investigator, Owen Burns, testified that the pattern of debris found at the scene established that defendant's vehicle struck the victim while he walked along the grassy area adjacent to the road. A forensic pathologist testified that the injuries on the victim's back were consistent with that theory and did not support defendant's argument that the victim walked into the road in front of his vehicle.

Proceeding to the issue of defendant's intoxication, two witnesses testified that defendant was drinking at a bar on the same night and one of the witnesses stated that defendant was intoxicated. The bartender testified that defendant arrived around 5:00 P.M. or 6:00 P.M. and left in his vehicle a little after midnight. During that time, defendant drank five or six beers, a "couple of" double shots of Yukon Jack, and then at least two more beers. In reference to the charge of leaving the scene of an incident without reporting, defendant conceded in his statement that he hit "something," although he claimed that he could not see what he hit. Nevertheless, Burns opined that the victim, wearing a brightly-colored tie-dyed T-shirt, was struck from behind and "thrown onto the hood," where he hit the windshield of defendant's vehicle with his head. Burns described a crack to the windshield as "substantial." Viewing the evidence in a light most favorable to the People (see, People v Taylor, 94 NY2d 910; People v Contes, 60 NY2d 620, 621), we find that the evidence adduced at trial was legally sufficient to allow the jury to find, based upon reasonable, permissible inferences drawn from defendant's actions and the surrounding circumstances, the essential elements of the crimes beyond a reasonable doubt (see, People v Contes, supra, at 621).

We are similarly unpersuaded by defendant's assertion that the verdict was against the weight of the evidence. Viewing the evidence in a neutral light and according deference to the fact finder's...