People v. Heinsohn

— Appeal by defendant from a judgment of the Supreme Court, Richmond County (Owens, J.), rendered March 9, 1982, convicting him of manslaughter in the second degree (two counts), reckless driving, speeding, and driving an unregistered motor vehicle, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction for reckless driving, vacating the sentence imposed thereon and dismissing said count. As so modified, judgment affirmed and case remitted to the Supreme Court, Richmond County, for further proceedings pursuant to CPL 460.50 (subd 5). The evidence revealed that, on the evening of May 8, 1981, the defendant was driving an unregistered vehicle in the right southbound lane of Richmond Avenue in Staten Island. Traveling some 14 miles per hour over the posted speed limit, he changed to the left southbound lane and began tailgating a van in front of him. Thereafter, in an apparent attempt to pass the van, the defendant suddenly pulled out to the left, crossing the line dividing the southbound and northbound lanes. In doing so, he drove onto a safety island located at the next intersection. His vehicle struck and killed two pedestrians who were standing on the island. Testifying in his own behalf, the defendant conceded that he was generally familiar with the area in which the incident occurred. On appeal, the defendant contends that it was error for the court to instruct the jurors, in answer to their inquiry, that a conviction for manslaughter in the second degree did not require a finding that the defendant had actually been aware that there were people on the safety island. Under the circumstances at bar, the court’s instruction was correct. Had the defendant driven onto the safety island knowing that there were pedestrians thereon, he might well have been guilty of an intentional crime. Here, however, the defendant was charged with manslaughter in the second degree and therefore with having acted recklessly. Thus, the issue at trial was whether the defendant had caused death by consciously disregarding a substantial and unjustifk able risk of which he was aware (see Penal Law, § 15.05, subd 3). The jury was - properly permitted to conclude that when the defendant, knowing that there was a safety island ahead, pulled out from behind the van, leaving the traffic lanes and crossing the dividing line, he consciously disregarded the substantial risk that pedestrians would be standing on the island. Accordingly, his reckless conduct, which resulted in the death of two pedestrians, was properly found to constitute the crime of manslaughter in the second degree. With respect to the defendant’s remaining challenges to the court’s instructions, we note that no appropriate exceptions were taken to the charge as given, and therefore the defendant’s present contentions have not been preserved for appellate review (see, e.g., People v Lipton, 54 NY2d 340, 341; People v Thomas, 50 NY2d 467). Moreover, we find that the charge, when read as a whole, adequately informed the jury of the principles of law governing the case (see People v Green, 50 NY2d 891). Finally, as the People concede, the verdict of guilt on the charges of manslaughter in the second degree requires dismissal of the lesser inclusory concurrent count of reckless driving (see, e.g., People v Lee, 39 NY2d 388, 390). We have examined the defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Lazer and Mangano, JJ., concur.