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People v. Carncross

March 25, 2010


The opinion of the court was delivered by: Lippman, Chief Judge

This opinion is uncorrected and subject to revision before publication in the New York Reports.

In protecting a defendant's Sixth Amendment rights, a trial court may on occasion properly disqualify the attorney of a defendant's choosing due to that attorney's conflicts, actual or potential, even in the face of defendant's waiver of such conflicts. This is such a case.

In the late afternoon on April 23, 2006, defendant drove away from his home in Onondaga County on his motorcycle. On felony probation at the time, defendant could not own or operate a motor vehicle since he did not have his probation officer's permission to do so, and he was not licensed to drive a motorcycle in New York State. As defendant traveled west on Route 173 toward Jamesville, New York State Trooper Craig Todeschini observed defendant speeding and began to pursue him. Defendant admitted that when he turned left on to Route 91, he saw the trooper's vehicle behind him with its emergency lights on, but, rather than pulling over to the side of the road, "took off" in an attempt to "not get[] caught by the trooper."

Various witnesses observed the motorcycle, followed by the trooper's vehicle, traveling at a high rate of speed, estimated between 90 and 120 miles per hour, and weaving in and out of traffic along the two-lane country roads. As Trooper Todeschini entered the Hamlet of Pompey, still in pursuit of defendant, he was unable to negotiate a turn in the road, lost control of his vehicle, and collided head-on into a tree, resulting in his immediate death. Three days after the accident, defendant voluntarily appeared at the New York State police barracks for an interview and, after consulting with his attorney, gave an inculpatory statement.

Defendant was indicted on one count each of reckless driving, aggravated manslaughter in the second degree, and aggravated criminally negligent homicide. A jury acquitted him of the aggravated manslaughter count, but convicted him on the reckless driving and aggravated criminally negligent homicide counts. Defendant was sentenced as a predicate felon to seven years in prison with five years' post release supervision. The Appellate Division affirmed the judgment of conviction. A Judge of this Court granted defendant's application for leave to appeal from that order. We now affirm.


Defendant first argues that the evidence was legally insufficient to support his conviction for aggravated criminally negligent homicide. In particular, defendant claims that there was insufficient evidence to establish that he acted with the requisite mens rea. This claim, however, is unpreserved. After the People rested, and again at the close of all the proof, defendant moved to dismiss the aggravated criminally negligent homicide count, arguing only that the evidence was insufficient to prove a "causal connection" between the defendant's conduct and the trooper's death. The court denied both motions. At no point did defendant argue, as he does now, that the evidence failed to establish he acted with the requisite mens rea. As we have previously explained, "where a motion to dismiss for insufficient evidence [is] made, the preservation requirement compels that the argument be 'specifically directed' at the alleged error " (People v Gray, 86 NY2d 10, 19 [1995], quoting People v Cona, 49 NY2d 26, 33, n 2 [1979]). Given defendant's failure to argue with particularity that the evidence was legally insufficient to prove that he acted with the requisite mens rea, we are foreclosed from reviewing that claim here.

Defendant also argues that the evidence is legally insufficient to establish a causal connection between his conduct and the death of the trooper. Although plainly preserved, this argument is without merit.

In People v DaCosta, we explained the law regarding causation in this context:

"To be held criminally responsible for a homicide, a defendant's conduct must actually contribute to the victim's death by setting in motion the events that result in the killing. Liability will attach even if the defendant's conduct is not the sole cause of death if the actions were a sufficiently direct cause of the ensuing death. More than an obscure or merely probable connection between the conduct and result is required. Rather, an act qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen" (6 NY3d 181, 184 [2006] [internal quotation marks, brackets and citations omitted]). In that case, we held that the evidence was legally sufficient with respect to causation where a police officer, while chasing the fleeing defendant across a busy expressway, was struck and killed by a vehicle. Similarly, in People v Matos (83 NY2d 509 [1994]), evidence of causation was legally sufficient where a police officer fell down an air shaft to his death in the course of pursuing the fleeing defendant up a ladder and across a roof. These cases establish that where a defendant's flight naturally induces a police officer to engage in pursuit, and the officer is killed in the course of that pursuit, the causation element of the crime will be satisfied.

Defendant argues that the trooper was negligent by excessively speeding and losing control of his vehicle and violated state police pursuit policy and Vehicle and Traffic Law § 1104, and that these acts were an intervening and unforeseeable causative circumstances. However, it is plain that had defendant not fled, the trooper would not have engaged in the high-speed chase that resulted in his death. Additionally, contrary to defendant's contention, there is no requirement that a defendant's vehicle actually make contact with the trooper's vehicle in order for the causation element to be satisfied. Rather, the essential inquiry is whether defendant's conduct was a sufficiently direct cause of the trooper's death, a question we answer in the affirmative. There can be no doubt that defendant's conduct set in motion the events that led to the trooper's death, and it was reasonably foreseeable that a fatal accident would occur as a result of defendant leading the trooper on a high-speed pursuit. Accordingly, the evidence was legally sufficient to establish a causal connection between defendant's conduct and the trooper's death.


Defendant next argues that County Court erred in granting the People's motion to disqualify his counsel. When the case was presented to the grand jury, the prosecutor called defendant's father and girlfriend. One of defendant's retained attorneys, Mary Gasparini, represented these witnesses and appeared with them in the grand jury room while they gave their testimony. Defendant's father testified that, on the evening of the accident, defendant returned home after riding his motorcycle and told his father not to let him ride his motorcycle until he was properly licensed because he was nearly pulled over by the police. Defendant also told his father that he had seen flashing lights, yet kept driving. Defendant's girlfriend testified that he called her shortly after the accident and said he was the motorcyclist the police were looking for and that he thought he was going to jail because the trooper had died. The next day, he called her and told her not to say anything about what he had told her the night before.

After the case had been presented to the grand jury, and four months before trial, the People moved to disqualify Gasparini and her partner, James Meggesto, on the ground that a potential conflict of interest existed based on Gasparini's representation at the grand jury of defendant's father and girlfriend who would be prosecution witnesses at trial. Defendant argued that if there was any conflict at all, it was only potential, and the issue could not be determined until after the testimony of the witnesses. Further, the defense ...

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