People v. LeBeau

Court Discusses Lesser Included Offenses of Vehicular Assault

The defendant was arrested and charged after he struck a pedestrian with his taxi after making a U-turn. The defendant admitted to the officer that the cause of the accident as a result of him drinking alcohol, taking cocaine and lack of sleep for a protracted period of time prior to the accident. The defendant was placed under arrest. The pedestrian was taken to the hospital after sustaining serious injuries. The officer also observed that the defendant had alcohol on his breath, bloodshot eyes and slurred speech during questioning. He submitted to a breathalyzer test where he registered a .08 percent blood alcohol content. The defendant was indicted for vehicular assault pursuant to section 120.03 of the Penal Law, DWI driving while impaired by drugs pursuant to section 1192.4 of the Vehicle and Traffic Law and DWAI driving while impaired by alcohol pursuant to section 1192.1 of the VTL.

It was concluded by a nonjury trial that the defendant was guilty of driving while impaired by alcohol and the charge of driving while impaired by drugs was dismissed. The court held that the People did not prove that the defendant was guilty beyond a reasonable doubt of vehicular assault but reserved judgment for the purposes of considering a request by either party to charge the defendant with a lesser included crimes in regards to vehicular assault. The People requested that the court consider reckless driving pursuant to section 1190 of the VTL and assault in the third degree pursuant to section 120 of the Penal Law as a lesser included offence to vehicular assault. The defendant however, objected on the basis that reckless driving and reckless assault required a higher mental culpability that crime charged on the indictment and that the People did not prove that the defendant acted with criminal negligence.

The court has a duty to consider not only the crime charged with but also any other possible lesser included crime or crimes that the evidence supports. In People v Green 56 N.Y.2d 427 it was held that a two prong test should be applied by trial judges in determining whether a lesser count was, in law, a lesser included crime. One prong is a strict statutory test while the other is purely an evidentiary test based on the evidence in each case. In considering the first prong of the statutory test, the greater crime charged was vehicular assault. The crime of vehicular assault requires proof of criminal negligence which involved a failure on the part of the defendant to perceive a substantial and unjustifiable risk that such result will occur or that such circumstances existed. While the People’s lesser count of reckless driving and assault in third degree involved recklessly causing physical injury to another were not lesser included offenses of crime of vehicular assault. The mental state of recklessness in the offense of reckless driving required an awareness and conscious disregard of consequences.

However, the People’s alternative of assault in third degree, involved a person, with a culpable mental state of criminal negligence, which caused physical injury to another by means of deadly weapon or dangerous instrument, was a lesser included offense of vehicular assault. There was evidence to support the finding that the defendant, who was indicted for crime of vehicular assault, committed lesser crime of assault in third degree, as proof established that the defendant operated taxicab while under influence of alcohol, without adequate sleep and after using cocaine, and the defendant made uncontrolled U-turn at more than reasonable rate of speed which cause his vehicle to be mounted on the sidewalk by more than ten feet before striking the pedestrian.

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