- January 22, 2018
Timothy D. Sini, District Attorney, Riverhead, NY (Michael J.
Miller, Elizabeth Miller, and Glenn Green of counsel), for
Leonardo Lato, Hauppauge, NY, for respondent.
S. ROMAN, J.P. HECTOR D. LASALLE FRANCESCA E. CONNOLLY LINDA
DECISION & ORDER
by the People from so much of an order of the Supreme Court,
Suffolk County (Fernando M. Camacho, J.), dated October 26,
2016, as dismissed the indictment as against the defendant.
that the order is affirmed insofar as appealed from.
defendant was indicted for various offenses based on a fatal
accident that occurred on July 18, 2015, at the intersection
of Route 48 and Depot Lane in Suffolk County. The evidence
before the grand jury established that at approximately 5:00
p.m., the defendant, a limousine driver, picked up eight
passengers at a winery on Route 48. Upon exiting the parking
lot, the defendant was required to make a right turn,
traveling east on Route 48. Since the defendant needed to
travel west on Route 48, he decided to make a U-turn at the
next intersection, which was Route 48 and Depot Lane. After
stopping and seeing no oncoming traffic, the defendant turned
left into the intersection and was broadsided by a pickup
truck traveling west on Route 48. The evidence before the
grand jury indicated that the defendant's view of
oncoming traffic was partially obstructed by a vehicle
waiting to make a left turn in the opposite turning lane on
the westbound side of Route 48. Four of the passengers in the
limousine died in the collision. The four surviving
passengers sustained injuries.
defendant was charged with four counts of criminally
negligent homicide, four counts of assault in the third
degree, one count of reckless driving in violation of Vehicle
and Traffic Law § 1212, and four additional violations
of the Vehicle and Traffic Law. The Supreme Court dismissed
all of the counts against the defendant, concluding, inter
alia, that the evidence presented to the grand jury with
respect to counts one through nine was legally insufficient.
The People appeal.
assessing the sufficiency of the evidence before a grand jury
must evaluate 'whether the evidence, viewed most
favorably to the People, if unexplained and
uncontradicted-and deferring all questions as to the weight
or quality of the evidence-would warrant
conviction'" (People v Mills, 1 N.Y.3d 269,
274-275, quoting People v Carroll, 93 N.Y.2d 564,
568; see People v Bello, 92 N.Y.2d 523, 525). CPL
70.10(1) defines legally sufficient evidence as
"competent evidence which, if accepted as true, would
establish every element of an offense charged and the
defendant's commission thereof." "In the
context of a Grand Jury proceeding, legal sufficiency means
prima facie proof of the crimes charged, not proof beyond a
reasonable doubt" (People v Bello, 92 N.Y.2d at
526; see People v Deegan, 69 N.Y.2d 976, 978-979).
This Court's inquiry "is limited to 'whether the
facts, if proven, and the inferences that logically flow from
those facts supply proof of every element of the charged
crimes, ' and whether 'the Grand Jury could
rationally have drawn the guilty inference'"
(People v Bello, 92 N.Y.2d at 526, quoting
People v Deegan, 69 N.Y.2d at 979).
agree with the Supreme Court's determination to dismiss
counts one through four of the indictment, charging the
defendant with criminally negligent homicide (Penal Law
§ 125.10), and counts five through eight, charging him
with assault in the third degree (Penal Law §
120.00). "A person is guilty of criminally negligent
homicide when, with criminal negligence, he causes the death
of another person" (Penal Law § 125.10). A person
is guilty of assault in the third degree when "[w]ith
criminal negligence, he causes physical injury to another
person by means of. . . a dangerous instrument" (Penal
Law § 120.00).
Penal Law defines criminal negligence as follows: "A
person acts with criminal negligence with respect to a result
or to a circumstance described by a statute defining an
offense when he fails to perceive a substantial and
unjustifiable risk that such result will occur or that such
circumstance exists. The risk must be of such nature and
degree that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable person
would observe in the situation" (Penal Law §
15.05). The Court of Appeals has stated that "the
carelessness required for criminal negligence is appreciably
more serious than that for ordinary civil negligence, and
that the carelessness must be such that its seriousness would
be apparent to anyone who shares the community's general
sense of right and wrong. Moreover, criminal negligence
requires a defendant to have engaged in some blameworthy
conduct creating or contributing to a substantial and
unjustifiable risk of a proscribed result; nonperception of a
risk, even if [the proscribed result occurs], is not
enough" (People v Conway, 6 N.Y.3d 869, 872
[internal quotation marks and citations omitted; see
People v Cabrera, 10 N.Y.3d 370, 376).
the grand jury evidence, viewed most favorably to the People,
did not establish "the kind of seriously condemnatory
behavior that the Legislature envisioned when it defined
'criminal negligence, ' even though the consequences
here were fatal" (People v Cabrera, 10 N.Y.3d
at 378; see People v McGrantham, 12 N.Y.3d 892,
893-894; People v Boutin, 75 N.Y.2d 692, 697- 698).
agree with the Supreme Court's determination to dismiss
count nine of indictment, charging the defendant with
reckless driving (Vehicle and Traffic Law § 1212). The
grand jury evidence, viewed most favorably to the People, did
not establish that the defendant operated his vehicle
"under such circumstances as to show ...