People v. Soto
| Decision Date | 03 May 1976 |
| Parties | The PEOPLE, etc., Respondent, v. Francisco SOTO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Walter Mund, New York City, for appellant.
Nicholas Ferraro, Dist. Atty., Kew Gardens (A. Brent Blacksburg, New Gardens, of counsel), for respondent.
Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, HAWKINS and CHRIST, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, entered June 27, 1975, convicting him of criminally negligent homicide, upon a jury verdict, and imposing sentence.
Judgment affirmed. This case is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd. 5).
The record amply supports the verdict.
HOPKINS, Acting P.J., dissents and votes to reverse the judgment and dismiss the indictment, with the following memorandum, in which CHRIST, J., concurs:
The defendant was convicted after a jury trial of criminally negligent homicide (Penal Law, § 125.10). I am concerned with only one point raised on appeal--whether the indictment is sufficient as a matter of law.
The indictment alleges that the defendant 'caused the death of JOSEPH FERENC by striking him with an automobile'. A pretrial motion to dismiss the indictment as insufficient was denied by Criminal Term. The propriety of that ruling is the question before us.
An indictment must contain 'a plain and concise factual statement * * * which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation' (CPL 200.50, subd. 7).
"Criminally negligent homicide' applies to a wide spectrum of fatal conduct of both commission and omission' (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 125.10, p. 379). Unlike the indictment in People v. Haney, 30 N.Y.2d 328, 331, 333 N.Y.S.2d 403, 405, 284 N.E.2d 564, 565, the instant indictment states no facts concerning the conduct of the defendant which would mark it as negligent. It is surely not enough to say that the defendant struck the victim with an automobile, since the operation of a vehicle by itself is not a criminal act. * (People v. Haney, supra, p. 334, 333 N.Y.S.2d p. 408, 284 N.E.2d p. 567). The indictment, consequently, does not meet the requirement of CPL 200.50 (subd. 7) that 'facts supporting every element of the offense charged' be alleged therein.
The indictment is, indeed, even terser than the indictment found insufficient in People v. Barnes, 44 A.D.2d 740, 354...
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