People v. Lazartes

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J), rendered July 31, 2001, convicting him of murder in the second degree (two counts), assault in the first degree, assault in the second degree (two counts), reckless driving, and driving without a license, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by (1) reversing the convictions of murder in the second degree (two counts) and assault in the first degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and (2) reversing the convictions of assault in the second degree (two counts), vacating the sentences imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the remaining counts of the indictment.

The defendant appeals from a judgment convicting him of two counts of murder in the second degree, assault in the first degree, two counts of assault in the second degree, reckless driving, and driving without a license. He is currently serving concurrent sentences, the maximum of which is 20 years’ to life imprisonment. The charges arise from a tragic automobile accident that occurred in the early morning hours of January 16, 2000, which resulted in the death of two people.

At the time of the accident, the defendant was 21 years old with an unblemished record. On the night in question he was visiting his family in New York and, accompanied by several friends, took the family car, a 1995 champagne-colored Mercedes-Benz, to a club in the Bensonhurst section of Brooklyn. The evidence adduced at trial, including the results of medical tests administered at the hospital, established that during his time at the club the defendant neither drank alcohol nor ingested drugs. The defendant and his friends left the club at 3:30 a.m. The defendant contended that while traveling on the Belt Parkway he was cut off by a burgundy-colored Mercedes-Benz. He swerved to avoid hitting the other Mercedes and instead collided with a Honda in which the decedents were passengers.

Kalliopi Zahardiadis testified that she was driving the Honda with three of her friends to various locations. After eating some food, she did not feel well, so she turned over the driving to her friend Michael Mateo, who at the time did not have a valid driver’s license. The Honda was low on gasoline and, upon entering the Belt Parkway, Zahardiadis and her friends decided to get gasoline from a service station located in the median divide of the parkway. As the Honda proceeded to the gas station it was hit by the defendant’s vehicle. The People produced witnesses who described the defendant’s car as playing “cat and mouse” with the burgundy Mercedes with both cars greatly exceeding the speed limit. However, these witnesses testified that the defendant’s car slowed when traffic conditions so warranted.

The evidence regarding thé speed at which the defendant’s car was traveling varied greatly. Although most of the witnesses estimated the speed of the defendant’s vehicle at between 85 and 95 miles per hour, the People produced a forensic expert who opined that, just before the accident, the defendant was traveling between 98 andlOS miles per hour and the most likely speed of the defendant’s vehicle at the time of collision with the Honda was about 102 miles per hour, an estimate which he acknowledged was dependent in part in assigning a speed of only 40 miles per hour to the Honda. The People’s expert conceded that if the Honda was going faster, his estimate of the defendant’s speed would drop to about 90-95 miles per hour. He further observed that the more weight present in the defendant’s Mercedes, the slower the speed to be assigned to it. The expert further conceded that he based his calculations solely on the factory weight of the car and did not add the weight of gasoline, passengers, or cargo.

During trial, over the defendant’s objection, the Supreme Court limited the use of information obtained from the medical records that Mateo, the driver of the Honda, had significant traces of cocaine and marijuana in his blood. The Supreme Court instructed the jury that it could utilize such information only in weighing the credibility of Mateo, who testified at trial. The defense was not permitted to explore Mateo’s drug use as a possible validation of the defendant’s version of the how the accident occurred, that it was due to Mateo’s erratic driving. The Supreme Court then instructed the jury that the negligence of other drivers is generally a foreseeable circumstance, and constitutes an extraordinary, unforeseeable circumstance only if it is the sole cause of the injury or death. Thus, the court charged the jury that it should acquit the defendant if Mateo’s erratic driving was the sole cause of the accident, but that Mateo’s driving would not relieve the defendant of culpability if it was merely a contributing factor in the happening of the collision.

Generally a jury’s verdict must be sustained as supported by legally sufficient evidence if “there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (People v Bleakley, 69 NY2d 490, 495 [1987]). In this case, the People failed to present legally sufficient evidence establishing the defendant’s guilt of murder in the second degree and assault in the first degree. Although the defendant’s attorney did not preserve for appellate review the precise issue of the sufficiency of the evidence with respect to the element of depraved indifference to human life by specifying that issue in his motion for a trial order of dismissal, we nonetheless reach the issue in the interest of justice (see CPL 470.15 [6]).

In order to sustain a conviction for depraved indifference murder, based upon legally sufficient evidence, the evidence, when viewed in the light most favorable to the prosecution, must establish that the defendant: “under circumstances evincing a depraved indifference to human life, . . . recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person (Penal Law § 125.25 [2]). Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists (Penal Law § 15.05 [3]). ‘The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation’ (id.). To constitute “depraved indifference,” conduct must be “ ‘so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another’ (People v Fenner, 61 NY2d 971, 973; see also People v Register, 60 NY2d 270, cert denied 466 US 953)” (People v Russell, 91 NY2d 280, 287-288 [1998]). In applying that standard, our courts have repeatedly adhered to the observation of the Court of Appeals in People v Poplis (30 NY2d 85, 88 [1972]), that the burden is upon the People to prove something more than merely reckless conduct, particularly where, as here, death results from a motor vehicle accident. In People v France (57 AD2d 432 [1977]), the Appellate Division, First Department, citing People v Poplis (supra), observed as follows:

“ ‘But the murder prescription requires more than recklessly causing death which could happen, for example, from gross carelessness in motor vehicle operation. (Emphasis added.) The murder definition requires conduct with “depraved indifference” to “human life,” plus recklessness. This is conduct of graver culpability, and it is the kind which has been rather well understood at common law to involve something more serious than mere recklessness alone which has had an incidental tragic result’ ” (People v France, supra at 434-435, quoting People v Poplis, supra at 88).

“Such condemned behavior is required to be extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo . . . and not merely carelessness or recklessness in the operation of an automobile” (People v France, supra at 435 [internal quotations and citations omitted]).

Giving the People every favorable inference from the evidence adduced, we must conclude that the defendant’s excessive speed, by itself, was insufficient to constitute the requisite depravity contemplated by Penal Law § 125.25 (2).

As the dissent notes, there is no doubt that an automobile may constitute the instrumentality of depraved conduct (see People v Gomez, 65 NY2d 9 [1985] [automobile speeding down a sidewalk hitting pedestrians]). However, the conduct and the circumstances surrounding its use must be beyond mere recklessness and must demonstrate a depraved indifference to human life (see People v Payne, 3 NY3d 266 [2004]). The facts in the cases cited by the dissent clearly demonstrate the difference in the degree of culpability necessary to sustain a conviction under Penal Law § 125.25 (2) in sharp contrast to the circumstances present herein. For example, in People v Esposito (216 AD2d 317 [1995]) the defendant did not merely engage in a game of cat and mouse in the manner suggested by some of the testimony in the present case. The defendant had been drinking before the incident in question, used his automobile to ram a parked vehicle, and had even used it to run down a pedestrian (not the decedent), threatening to kill him. Thereafter, he chased the decedent’s car under circumstances evincing an intent to kill as the cars actually engaged in repeated bumping, which one witness described as appearing to be an attempt to force the decedent’s vehicle off the roád. The foregoing all occurred at excessive rates of speed on residential suburban streets in close proximity to homes, with the defendant totally ignoring numerous traffic control devices and a pursuing police officer. After the accident, the defendant left the scene without stopping to see if the decedent had been injured as a result of the impact of his vehicle with a tree.

Similarly, in People v Legendre (134 AD2d 525 [1987]), the defendant engaged in drag racing on a residential street in Brooklyn at 5:00 p.m. with numerous children present, again ignoring traffic control devices and struck a young child walking in the street. The defendant also fled the scene of the accident without any attempt to aid the victim, thus clearly further demonstrating the requisite depraved indifference to human life. In People v Keating (283 AD2d 589 [2001]), cited by the dissent, the defendant was intoxicated (with a blood alcohol level found to be nearly twice the legal limit). The defendant sped down residential streets at rates twice the posted speed limit, ignoring traffic control devices, colliding with several vehicles, before hitting the decedent and fleeing the scene of the accident.

In all of the cases cited by the dissent, the evidence was such that the jury could find beyond a reasonable doubt that the respective defendants evinced a depraved indifference to human life and were not merely reckless. Even when viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), the evidence in the instant case is devoid of any indicia of depravity, i.e., such wanton conduct evincing indifference to human life.

In the present case, the evidence seems to indicate that it was the driver of the victims’ car who was under the influence of illegal substances, not the defendant. The speeding occurred on a roadway designed to accommodate greater rates of speed than residential roads, at an hour when lighter traffic conditions predominated, and in an area where the possibility of damage to residences or pedestrians was virtually non-existent. No contact occurred between the defendant’s vehicle and any other vehicle before the accident. The gravest threat to human life by the defendant’s driving was posed by the presence of other vehicles on the parkway. Significantly, the unrefuted evidence indicated that, notwithstanding occasionally achieving excessive rates of speed, the defendant repeatedly slowed his vehicle where the traffic conditions so warranted. This is the antithesis of a depraved, as opposed to a reckless, state of mind (see People v Poplis, supra; People v Thacker, 166 AD2d 102 [1991]; People v Asaro, 182 AD2d 823 [1992]). Based on those facts, the People failed to demonstrate that the defendant’s culpability was equivalent to that of one who purposefully causes the death of another (see People v Russell, supra). Thus, the defendant’s convictions of depraved indifference murder must be reversed and those counts of the indictment dismissed. Since the crime of assault in the first degree in this instance also requires a finding of “circumstances evincing a depraved indifference to human life” (Penal Law § 120.10 [3]), the conviction of that count must also be reversed and that count of the indictment dismissed (see People v France, supra).

Moreover, the Supreme Court erred in limiting the jury’s consideration of the evidence of the medical condition of the driver of the Honda to the impeachment of his credibility. In so doing, the Supreme Court eliminated from the jury’s consideration the possibility that the accident was caused solely by the drug-influenced actions of the driver of the Honda. The Supreme Court’s ruling, coupled with the charge that the negligence of other drivers was always foreseeable, also prevented the jury from considering whether the actions of the driver of the Honda, in traversing three lanes of moving traffic on the Belt Parkway to reach the service station in the median in the early morning hours, while potentially impaired by intoxicants, constituted such a departure from driving norms as to be unforeseeable, i.e., beyond the mere negligence of the other motorists, sufficient to negate the defendant’s responsibility in causing the accident. Therefore, the convictions of assault in the second degree must be reversed and the matter remitted to the Supreme Court for a new trial on, inter alia, those counts of the indictment.

We note that the errors set forth above were compounded when, over the objection of the defense counsel, the prosecutor, during her summation, knowing that the defense was restricted in using evidence that the driver of the Honda was impaired by drugs or alcohol, and that the court had sustained the prosecutor’s objection to the defense’s reference to such circumstance, asked the jury “[W]here are the beer cans. Where is the crack.” In neither instance did the court issue an explanation to the jury as to its divergent treatment of that issue and the importance, if any, the jury was permitted to attach to such circumstance.

After the jury expressed uncertainty as to the charge and requested clarification in writing, the Supreme Court repeated the charge initially presented. The court stated that portion of the model charge which defines recklessness, but failed to adequately and completely set forth an explanation of the portion dealing with depravity. Absent from the court’s explanation to the jury was that portion of the charge which specifies that conduct may be considered depraved if the jury finds it to be “so inhuman, as to demonstrate an attitude of total and utter disregard for the life of the person or persons endangered” (see CJI2d[NY] Penal Law § 125.25 [2]; People v Roe, 74 NY2d 20 [1989]; People v Fenner, supra; People v Register, supra).

The defendant’s remaining contentions are without merit. Krausman, Luciano and Lifson, JJ., concur.