Defendant appeals from a judgment of the Supreme Court, Bronx County (Robert Torres, J.), rendered June 30, 2008, convicting him, after jury trial, of manslaughter in the second degree, assault in the second degree (two counts), vehicular manslaughter in the second degree, vehicular assault in the second degree (two counts), and operating a motor vehicle while under the influence of alcohol (two counts), and imposing sentence.
The opinion of the court was delivered by: Tom, J.P.
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.
Peter Tom, J.P., John W. Sweeny, Jr., James M. McGuire, Leland G. DeGrasse, Helen E. Freedman, JJ.
The prosecution's theory of this case is that defendant entered a delivery truck, without authorization and while intoxicated, and caused it to strike vehicles and pedestrians in the intersection below. Defendant, however, alleges that he entered the vehicle only after it was already in motion, rolling downhill and, without starting the engine, unsuccessfully attempted to stop it. No witness actually saw defendant enter the vehicle, which was poorly maintained and grossly overloaded. Since there is a reasonable view of the evidence that defendant unlawfully entered and operated the vehicle while intoxicated in an attempt to avoid injury while confronting a situation not of his making, he was entitled to a justification charge, and Supreme Court's unexplained omission to so instruct the jury constitutes reversible error.
It is uncontroverted that on the afternoon of August 1, 2005, a box truck being used to make deliveries was parked at the right-hand curb, facing downhill on Mount Eden Avenue in the Bronx, between the Grand Concourse and Walton Avenue. The driver, Francisco Rios, turned off the engine, left the keys in the ignition and went into a store. The vehicle was later observed proceeding downhill along Mount Eden Avenue coming from the direction of Walton Avenue and traveling westbound toward Townsend Avenue, where it went through the intersection, striking three persons. It was brought to a stop after colliding with oncoming cars approaching the intersection at Jerome Avenue. Defendant was then seen leaving the vehicle through the passenger door. Defendant did not have permission to operate the truck, nor did he possess the appropriate operator's license.
Carlos Montilla recognized the truck that he observed approaching Jerome Avenue as a vehicle that was parked every day on the hill at the corner of Mount Eden and Walton Avenues. He also recognized defendant, whom he had known for about 10 years, as he emerged from the truck's passenger-side door. Montilla testified that defendant told him that he was "joking around" and "had taken the truck to play a trick on the owner." Montilla had also observed defendant drinking beer on the corner.
Following his arrest, defendant was subjected to blood alcohol and narcotics testing, which disclosed a blood alcohol level of 0.09%. The People's expert opined that at the approximate time of the accident, defendant's blood alcohol level would have been between 0.13 and 0.17%.
From Walton Avenue where the truck was parked, westbound to Townsend Avenue, Mount Eden Avenue slopes down at a grade of 10%, which increases to 12% between Townsend and Jerome Avenues. Francisco Rios testified that it was his custom to leave the truck in reverse gear with the wheels either angled toward the curb or straight and the parking brake set. However, as the People concede, during his grand jury testimony, Rios stated that the truck's parking brake was not operational.
The People's interpretation of events is that "defendant, while intoxicated, got into Francisco Rios's truck to play a 'trick' and recklessly caused the truck to move down Mt. Eden Avenue, hitting and killing Saquan Williams, Jr. and seriously injuring Tasha Gibbs and Giselle Buie."
The justification defense contained in Penal Law § 35.05 provides, in pertinent part: "[C]onduct which would otherwise constitute an offense is justifiable and not criminal when:"2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue . . . Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense." Supreme Court refused defendant's request to instruct the jury on justification, stating, "I do not see how a Justification Charge would be warranted under the particular facts and circumstances." The court did not elaborate on its reasoning.
On appeal, the People adopt the unusual argument asserted by the prosecutor at trial -- that by intentionally entering a truck that was already endangering the public in an effort to prevent harm, defendant did not create a risk of injury. They theorize that Penal Law § 35.05(2) contemplates a situation confronting the defendant with a "choice of evils," where the defendant has engaged in conduct that, because it is criminal, requires justification to avoid criminal liability, and the defendant attempts to demonstrate that he resorted to such criminal behavior to avoid a greater injury. Since defendant denied either being intoxicated or speaking with Montilla, the People contend that "when the defense evidence is viewed in the light most favorable to defendant, defendant did not act recklessly or operate a vehicle while intoxicated." Thus, they conclude, he was not engaged in any statutorily prohibited conduct that would require justification, and the defense is unavailable.
The People advance the untenable argument that a defendant must first present a case that warrants conviction for criminal conduct before the right to assert a defense of justification can be invoked. The extent to which a law requiring a defendant to incriminate himself before putting in a defense might infringe upon constitutional rights guaranteed to the accused need not be addressed because the position advocated by the People is simply not the law.*fn1 As stated in People v Butts (72 NY2d 746, 748 ), "It is established New York case law that a defendant's entitlement to a charge on a claimed defense is not ...