Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Peck, J.), rendered February 23, 2007, convicting him of assault in the first degree, assault in the second degree, vehicular assault in the second degree, assault in the third degree, operating a motor vehicle while under the influence of alcohol (two counts), reckless driving, and violations of Vehicle and Traffic Law §§ 1130(1), (2), and 1127(a), after a non-jury trial, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, RANDALL T. ENG & ARIEL E. BELEN, JJ.
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
We agree with the defendant that the evidence at trial, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), was legally insufficient to establish that he acted with the culpable mental state of depraved indifference to human life at the time he collided with the complainants' vehicles and, thus, did not support his conviction of assault in the first degree (see Penal Law § 120.10; People v Feingold, 7 NY3d 288; People v Palmer, 34 AD3d 701). In this regard, we find unpersuasive the prosecution's contention that the mens rea component of depraved indifference assault may be satisfied by considering the defendant's state of mind at a point much earlier in time than the accident, when the defendant allegedly made a conscious decision to consume an excessive amount of alcohol with the awareness that he subsequently would be operating a motor vehicle. Assuming arguendo that the evidence would support such a finding, and that such a state of mind would otherwise satisfy the culpable mental state of depraved indifference to human life, we conclude that the defendant's state of mind at the time he consumed the alcohol was too temporally remote from his operation of the vehicle to support a conviction for depraved indifference assault in this case. We find unpersuasive our dissenting colleague's reliance upon dicta to the contrary set forth in the majority opinion in People v Wells (53 AD3d 181).
Given the limited contentions before us on this appeal, we have no occasion to decide the separate question of whether voluntary intoxication may negate the mens rea of depraved indifference (cf. People v Coon, 34 AD3d 869).
The defendant's remaining contentions either are without merit or need not be reached in view of the foregoing.
MASTRO, J.P., ENG, and BELEN, JJ., concur.
DILLON, J., concurs in part and dissents in part, and votes to affirm the judgment appealed from, with the following memorandum:
I respectfully dissent from the portion of the majority's decision which holds that the defendant's intoxication was too temporally remote from his driving to permit his conviction of depraved indifference assault under Penal Law § 120.10(3). I urge that the defendant's conviction and sentence be affirmed in all respects.
At a friend's house on Long Island, the defendant voluntarily consumed alcohol in sufficient quantities as to result in a .21 blood alcohol content, while knowing that he was going to drive himself back to his home in Elmhurst, Queens. Thereafter, the defendant operated his vehicle northbound in a southbound lane of the Wantagh State Parkway for approximately 3.9 miles toward oncoming traffic, at a speed of approximately 60 miles per hour. Along the way, he passed five red-and-white wrong-way signs, seven large overhead exit signs that could not be read because he was approaching them from the opposite direction, and 61 other signs that could not be read because they were backwards for the defendant's direction of travel. Near Sunrise Highway, the defendant collided head-on into two vehicles, causing the operators of those vehicles to sustain severe injuries.
After a non-jury trial, the defendant was convicted of, inter alia, assault in the first degree based on depraved indifference to human life (see Penal Law § 120.10). The trial court noted in its verdict that the defendant's intoxication rendered him "oblivious" to his dangerous travel upon the highway prior to the accident. However, rather than predicating a finding of a depraved indifference mental state upon the defendant's condition during the moments leading up to the collision, the trial court carefully held that the defendant's depraved indifference mental state was established when he engaged in excessive and continuous drinking, knowing that he would later be driving home on heavily trafficked roads. In other words, the trial court temporally split the defendant's mens ...