A driver from New York appealed when he was convicted of the crimes of vehicular manslaughter in the second degree and two counts of DWI (driving while intoxicated) and the traffic infraction of failure to keep right.
In tne early morning, following an evening of drinking at a bar, the defendant commenced driving his car with one passenger in the front and the victim, who was acutely intoxicated in the back seat. Shortly afterwards, the defendant was involved in a single vehicle accident, in which his car struck a guide rail, crossed the road and went into a ditch. Although the front seat passengers were not seriously injured, the one seated at the back died. A New York Criminal Lawyer said the pathologist who conducted the autopsy concluded the cause of death was Aspiration gastric contents due to Concussion. A jury found the defendant guilty on all four counts. His subsequent sentence included a prison term, a fine and restitution for vehicular manslaughter, one year in jail on each of the driving while intoxicated counts, and a fine for failure to keep right. All the prison terms were concurrent.
Records revealed that the defendant argues that his conviction of vehicular manslaughter in the second degree was not supported by legal sufficient evidence. When analyzing legal sufficiency, the evidence is viewed in the light most favorable to the prosecution and determine whether there is a valid line of reasoning for a rational jury to have found beyond a reasonable doubt each of the essential elements of the crime. Vehicular manslaughter in the second degree is comprised of criminally negligent homicide in which the death is caused by an operator who is driving while intoxicated. The defendant contends that the evidence failed to establish criminal negligence and failed to show that his conduct caused the victim’s death.
Criminally negligent homicide involves a failure to perceive a risk of death, and some serious blameworthiness in the conduct that caused it. The risk involved must have been substantial and unjustifiable, and the failure to perceive that risk must have been a gross deviation from reasonable care. There was proof that both the defendant and the victim had been drinking substantial amounts of beer and shots of liquor throughout the evening and early morning hours.
Despite his considerable consumption of alcohol, the defendant, after helping place the victim in his car, began driving. The front seat passenger testified that following the accident, he wanted to get help for the victim, but the defendant told him not to and, instead, instructed him to assist in attempting to get the car out of the ditch. The accident occurred near a house and the occupant of the house awoken at the sound of the accident and stated that they heard the occupants trying to get the car out of the ditch for about half an hour. Several witnesses who came upon the scene more than half an hour after the accident described the defendant as appearing severely intoxicated with slurred speech and difficulty standing. The defendant acknowledged to a police officer at the hospital that he had been drinking and missed a turn because he was going too fast. He submitted to an alco-sensor test that indicated positive for alcohol, and a subsequent blood alcohol test was taken a considerable time after the accident revealed a level of .17%. The evidence adequately supports the jury’s determination that the defendant’s conduct constituted negligence.
The defendant contends that the victim choked on his own vomit. A Bronx Criminal Lawyer said the pathologist who performed the autopsy testified that the large hematoma on the victim’s forehead revealed that he had not choked prior to the accident since such bruising would not have occurred if he is already dead. He further explained that, despite the victim’s high blood alcohol level, his gag and cough reflexes would have remained responsive. However, the pathologist added that the victim sustained a concussion in the accident and a concussion made it significantly more likely that the victim was not able to cough and clear his throat from vomit. The evidence adequately established that the victim was alive when he was placed in the defendant’s car and the defendant’s conduct was a sufficiently direct cause of the victim’s death to support the verdict.
The argument that County Court erred, after conducting a hearing, in admitting the results of the horizontal gaze nystagmus test is also unpersuasive. The defendant failed to establish an abuse of discretion or extraordinary circumstances that would merit modification of his sentence.
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