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3 No. 271 [1996 NY Int. 259]
Decided December 20, 1996
Gary C. Hobbs, for appellant.
Robert M. Winn, for respondent.
MEMORANDUM:
The order of the Appellate Division should
be affirmed.
Defendant has been convicted of two counts
of criminally negligent homicide and one count of reckless driving as the
result of an automobile accident in which her pick-up truck
struck a vehicle driven by Floyd Shepherd. Shepherd and a passenger,
his daughter Robyn Borden, died as a result. The accident happened
at approximately 4:15 a.m. on a foggy morning when defendant drove her
vehicle on the wrong side of the road after consuming alcoholic beverages.
Defendant, unconscious and unable to talk after the accident, was removed
to Glens Falls Hospital for treatment of her injuries.
Defendant contends that there was an error
in the instructions to the jury because the court read a portion of the
indictment which, when charging criminally negligent homicide,
alleged that defendant drove her vehicle on the wrong side of the road
after consuming alcohol "and/or" operating without sufficient rest "and/or"
without due regard to the weather
conditions. The court should not have read the factual allegations
in the disjunctive because, in the abstract, doing so could permit the
jury to premise guilt on only one of them.
Nevertheless, the error does not warrant reversal in this case. There
was no serious dispute that the accident happened in the Shepherd lane
of travel, about 4:15 a.m., on a foggy morning, that defendant had not
slept the night of the accident, and that she had consumed alcoholic beverages
during the evening. To the extent the allegations of the indictment
were controverted, the challenge went to the extent or degree of the condition,
not its existence, and defendant does not claim that the verdict rests
on proof of only one of these facts. Indeed, she does not claim the
evidence was insufficient to support the jury's verdict.
The court's instructions were otherwise thorough
and correct. It fully explained the elements of criminally negligent
homicide, the difference between civil and criminal negligence
and the quantum of evidence necessary to support a finding of guilt
of the criminal charges. It impressed upon the jurors that the "carelessness
required for criminal negligence is appreciably more serious than that
for ordinary negligence", that a finding of criminal negligence "requires
proof that the defendant's conduct was of such a gross and flagrant character
as to warrant the imposition of criminal liability", and that defendant's
conduct must have been "serious[ly] blameworth[y]." When the jurors
requested additional instructions during their deliberations, the court
correctly instructed them on the law and avoided use of the disjunctive
language.
We have held that a charge may be sufficient,
indeed substantially correct, even though it contains phrases which, isolated
from their context, seem erroneous: "[t]he test is always whether the jury,
hearing the whole charge, would gather from its language the correct rules
which should be applied in arriving at decision" (People v Russell, 266
NY 147, 153). The
charge in this case satisfies that test. We agree with the Appellate
Division that when read as a whole, it fairly instructed the jury on the
correct principles of law to be applied to the case and does not require
reversal (see, People v Fields, 87 NY2d 821).
We also agree that defendant's blood sample
was properly obtained and admitted at trial. The suppression court
concluded, based upon findings subsequently affirmed by the Appellate Division,
that the state police investigator had reasonable grounds to believe defendant
had been operating her vehicle in violation of section 1192 of the Vehicle
and Traffic Law. It based its conclusion on evidence that she had
consumed alcohol, had driven across the center line of the road at an excessive
rate of speed in the fog and collided head-on with the automobile in which
the victims were riding. The court also found that the officer had
satisfied the requirements of section 1194(1) of the Vehicle and Traffic
Law by obtaining court authorization for the test because defendant was
unconscious after the accident. Under the circumstances, the officer
was not required to go through the formalities of an arrest (see, People
v Goodell, 79 NY2d 869).
Next, defendant maintains that the results
of the test were inadmissible under CPL 60.75 because the proceedings against
her did not include a charge for violation of section 1192 of the Vehicle
and Traffic Law. CPL 60.75 provides that when Vehicle and Traffic
Law charges and Penal Law charges are tried together the evidence obtained
pursuant to section 1194 of the Vehicle and Traffic Law is admissible as
to both charges. The statute was enacted to remove any doubts arising
from our holding in People v Moselle (57 NY2d 97), that when charges from
the two chapters were joined the test results were not admissible with
respect to the Penal Law charges. Section 60.75 does not limit the
use of blood test results to prosecutions under Vehicle and Traffic Law
or to prosecutions linking Vehicle and Traffic Law and Penal Law offenses.
Indeed, section 1195(1) of the Vehicle and Traffic Law
provides that blood test results are admissible at the trial of "any
action or proceeding" arising out of a factual basis for a driving while
intoxicated arrest. The evidence, if legally
obtained and relevant, should be admissible in Penal Law prosecutions,
notwithstanding the absence of any charge under the Vehicle and Traffic
Law.
Finally, defendant claims error in admitting
expert opinion evidence of the amount of alcohol in her blood at the time
of the accident. The People's expert, using the .057 BAC test results
from a sample taken at 7:30 a.m., testified that based upon (1) the rate
that alcohol is eliminated from the body of a person such as defendant
under the circumstances presented and (2) the time between the accident
and the test, her BAC at the time of the accident would have been .107%.
Defendant's objection to the admission of this "relation-back" evidence
was not preserved and, accordingly, we do not pass on whether such evidence
may be admitted over objection.
We have considered defendant's claimed error
by the court in answering the jury's inquiries and find none.
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Titone, J. (dissenting):
Recognizing that the trial court's disjunctive
charge
"should have been avoided," the majority nonetheless upholds
defendant's conviction on the theory that the charge as a whole
"fairly instructed the jury on the applicable principles of law."
A review of the court's entire charge, however, reveals that the
objectionable charge was never ameliorated or corrected and that
the remaining portions of the instruction only served to magnify
the initial flaw. Since, in my view, the charge as a whole
misstated the applicable legal principles, I dissent from the
Court's decision to affirm.
The charge error occurred at the outset of
the court's
instruction on the elements of the charged crime. After telling
the jury that the People must prove all of the elements of the
crime beyond a reasonable doubt, the court stated:
Number One, with regard to the first count
charging criminally negligent homicide in regard to the death of
Floyd Shepard;
That on or about August 1, 1993, * * * the
defendant * * *
was operating a motor vehicle * * * after consuming alcohol,
and/or operating without sufficient rest, and/or without due
regard to adverse weather conditions, resulting in her vehicle
crossing into the [oncoming] lane * * * , those are the
allegations, thereby creating a substantial risk of death to
another person * * * . The first element, that she was
operating, considering these allegations, they are and/or
allegations, resulting in crossing into the [oncoming] lane.
The second element is that * * * the defendant
failed to
perceive a substantial and justifiable risk of death.
The third element is that the defendant's
failure to
perceive the risk constituted a gross deviation from the standard
of care a reasonable person would observe in this situation.
The fourth element is that the defendant's
acts caused the
death of Floyd Shepard.
Therefore, * * * if you find that the People
have proved to
your satisfaction beyond a reasonable doubt, each of these four
elements, as I have just explained them to you; that on or about
August 1, 1993 * * * the defendant was operating a motor vehicle
* * * after consuming alcohol and/or operating without sufficient
rest, and/or without due regard to adverse weather conditions,
resulting in her vehicle crossing into the [oncoming] lane * * *
thereby creating a substantial and unjustifiable risk of death to
another person, to wit; Floyd Shepard. Number Two, at the time
she so acted, that the defendant failed to perceive a substantial
and unjustifiable risk of death. Number three that the
defendant's failure to perceive that risk constituted a gross
deviation from the standard of care a reasonable person would
observe in this situation. And four, that the defendant's acts
caused the death of Floyd Shepard, then you must find the
defendant guilty of the crime of criminally negligent homicide
(emphasis supplied).
The second count of the indictment, which concerned a second
victim, was described in precisely the same way.
As is evident from the foregoing, the court's
charge
unmistakably conveyed that the first "element" of the crime would
be established if the jury found that defendant had committed any
one of the enumerated acts, i.e., operating a vehicle after
consuming alcohol, operating without sufficient rest or operating
without due regard to adverse weather conditions. However, in
the context of these facts, the commission of one of the
foregoing acts was not, standing alone, sufficient to support a
conviction for criminally negligent homicide. As we have
previously stated, "criminal liability cannot be predicated on
every act of carelessness resulting in death[. T]he carelessness
required for criminal negligence is appreciably more serious than
that for ordinary civil negligence" (People v Boutin, 75 NY2d
692, 695-696).
Applying this principle, we have held that
an individual who
failed to perceive a vehicle stopped on the road ahead of him was
not guilty of criminally negligent homicide even though he had
been driving 60 to 65 miles per hour on a foggy, rainy and slushy
night and a jury could therefore find that he had been driving
"without due regard to adverse weather conditions" (see, id.).
In contrast, we upheld liability under the criminally negligent
homicide statute where the defendant had committed a series of
careless acts which, taken in combination, manifested the kind of
"serious blameworthiness" or gross deviation from reasonable care
that the law requires (People v Paul V.S., 75 NY2d 944; People
v
Ricardo B., 73 NY2d 228; People v Soto, 44 NY2d 683; People v
Haney, 30 NY2d 328; see, People v Boutin, supra, pp 695-697;
Penal Law 15.05[4], 125.10).
The legal proposition that arises from the
case law -- a
proposition that the People here do not dispute -- is that
individual acts of civil negligence, such as driving too fast for
weather and road conditions or driving without sufficient rest,
ordinarily do not alone support a conviction for the crime of
criminally negligent homicide. Since the trial court's initial
disjunctive discussion of the elements of the crime as applied to
the facts in this case was contrary to this proposition, it was
plainly erroneous.
Further, contrary to the majority's assertion,
there was
nothing in the subsequent portions of the court's charge that
sufficed to dispel the inaccurate version of the law that the
first part of the charge conveyed. Immediately after the
objectionable charge describing the crime elements was given, the
court told the jury that the factual matters it had referred to
(i.e., defendant's consuming of alcohol, her driving without due
regard to adverse weather conditions and her driving without
sufficient rest) were "allegations" and were "different than
elements * * * with regard to the crime." However, rather than
correcting its earlier misstatement about what the People had to
prove, the court exacerbated its error by twice stating that
"[i]t is not necessary for the [P]eople to * * * prove all of the
allegation [or] acts alleged in this indictment." Thus, any
lingering doubt about the court's improper disjunctive
terminology was resolved and the misimpression it created was
reinforced.1
Finally, the court's supplementary charge
did not cure the
harm created by its main instruction. In its response to the
jury's request for a review of "the elements of criminal
negligence," the court first read the Penal Law definition of
criminally negligent homicide and then, drawing heavily on the
language of this Court's opinion in People v Boutin (supra), it
gave a general description of the high degree of culpability
necessary to establish criminal negligence. While the
supplementary charge was not in itself erroneous, it was not
inconsistent with the court's earlier inaccurate instruction and,
thus, had no impact on that instruction's effect.
Having repeatedly been told that the first
element of the
charged crime could be established if the People proved any one
of the alleged acts and having never been disabused of that
notion, the jury would naturally have tried to reconcile that
instruction with the more general language of the supplementary
charge. The likely result was an assumption by the jurors that
criminal negligence requires a showing of conduct considerably
more culpable than ordinary civil negligence and that that
standard could be satisfied by proving any of the separate acts
alleged in the indictment.
Accordingly, it cannot be said that the court's
instruction,
either in its parts or as a whole, correctly conveyed the proper
legal principles that the jury was to apply. Further, the
erroneous charge that the court gave was highly prejudicial,
since it impermissibly reduced the People's burden of proof and
authorized the jury to convict on findings that did not, in
truth, satisfy the requirements of Penal Law 125.10 as
construed in cases such as People v Boutin (supra). Because the
guilty verdict could well have been tainted by the jury's flawed
understanding of the law, I conclude that the judgment of
conviction should be reversed.
F O O T N O T E
1.The People contend that this aspect of the trial court's
instruction, as well as its initial disjunctive charge, was
justified by this Court's holdings in People v Rooney (57 NY2d
822) and People v Charles (61 NY2d 321). However, Charles merely
held that the People need not prove every factual allegation in
the indictment and that the court could use the disjunctive in
its charge where the "offense may be committed by doing any one
of several things'" (People v Charles, supra, 61 NY2d, p 327,
quoting People v Nicholas, 35 AD2d 18, 20 [emphasis supplied]).
The Court reached the same conclusion in Rooney, but the holding
rested, once again, on the premise that the jury in that case
could find the defendant criminally negligent even if it found
that he had committed only one of the alleged acts. Manifestly,
that reasoning cannot be applied where, as here, not all of the
alleged acts, standing alone, would suffice to establish the
crime.
* * * * * * * * * * * * * * * * *
Order affirmed, in a memorandum. Chief Judge Kaye and Judges
Simons, Smith and Ciparick concur. Judge Titone dissents and
votes to reverse in an opinion in which Judge Bellacosa concurs.
Judge Levine took no part.
Decided December 20, 1996