The issue for determination is whether a participant in a high-speed automobile race on a public highway is subject to criminal liability when another participant’s car is involved in an accident which results in the death of a third person. The charges in this case arose from a two-car accident involving the vehicle of the defendant Mark D. Abbott. The occupants of the other car were killed.
It appears from the facts established at trial that at approximately 1:00 a.m. on January 19, 1980 defendant Paul T. Moon was traveling alone in his car in an easterly direction on Maple Road in the Town of Amherst when he became involved in a “drag race” with an automobile driven by Abbott. Maple Road, which traverses a residential area, is a four-lane highway with designated sрeed limits. Traffic is controlled by traffic control signal lights at various intersections. Spaced white lines divide the two eastbound and the two westbound lanes and double yellow lines spaced approximately four feet apart separate the eastbound and westbound lanes. Both Moon and Abbott were observed racing at very high rates of speed by the occupants of at least three other vehicles which were traveling along Maple Road at the time. At one point in particular Moon was observed trying to overtake Abbott’s vehicle by crossing over the double yellow line and traveling in the westbound lane. An automobile driven by Patricia A. Hammond, which entered the intersection of Maple Road and Palmdale, was struck broadside by the Abbott vehicle instantly killing Mrs. Hammond аnd her two passengers. Moon’s vehicle fishtailed through the scene of the accident and avoided collision with the two vehicles. It was described as spinning in a full circle in all four lanes beforе it stopped facing in a westerly direction. Moon sat in his automobile for a short time until he backed up, made a U-turn and drove away.
Moon and Abbott were jointly indicted for three counts of manslаughter in the second degree in that they, “each being intentionally aided by the other *** recklessly caused the death of another person”, three counts of crimi
Abbott was sentenced to an indeterminate term of imprisonment having a maximum of three years and a minimum of one year on each criminally negligent homicide conviction, a definite sentence of one year on the driving while intoxicated and reckless driving convictions, and a conditional discharge on the traffic violations; all terms to run concurrently. Moon received a concurrent one year definite sentence on each criminally negligent homicide conviction and the reckless driving conviction, and a conditional discharge on the traffic violations.
The theory of the prosecution against Moon was that he intentionally aided Abbott to engage in the criminally negligent conduct which resulted in the deaths of the three victims. Moon claims that such a theory is “not logical” and that one must be liable by “one’s own acts as a principal for criminally negligent homicide or not at all”. He contends that his conduct was not of such a nature as to justify a conviction for criminally negligent homicide pursuant to section 20.00 of the Penal Law, which attaches criminal liability for the conduct of another. We disagree with this contention.
A person is guilty of criminally negligent homicide under section 125.10 of the Penal Law when “with criminal negligence, he causes the death of another person”. Under subdivision 4 of section 15.05 of the Penal Law a person acts with criminal negligence with respect to a result or circumstance “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 dеviation from the standard of care that a reasonable
What amounts to criminal negligence “depends, of course, entirely on the circumstances of the particular conduct. Whether in those circumstances the act оr acts causing death involved a substantial and unjustifiable risk, and whether the failure to perceive it was such as to constitute a gross deviation from the standard of care which a reasonable man would have observed under the same 'circumstances, are questions that generally must be left directly to the trier of the facts. In other words, ‘[t]he tribunal must evaluate the actor’s failure of pеrception and determine whether, under all the circumstances, it was serious enough to be condemned.’” (People v Haney,
A “drag race” involves two or more drivers engaged in a contest of speed with the use of their automobiles. When this activity occurs on a public highway there is an inherent danger of increasing thе death-dealing potential of the automobile. The significance of this conduct should be apparent to anyone “‘“who shares the community’s general sense of right and wrong”’” (People v Haney,
The statutory scheme permits accessorial liability to attach for criminally negligent homicide provided that the accessory shares the requisite culpable mental statе for the crime and intentionally aids in its commission (see People v Gramaglia,
The evidence was, therefore, sufficient for the trier of fact to conclude beyond a reasonable doubt that Moon while acting with the culpable mental state of criminal negligence gave assistance or encouragement to Abbott to engage in conduct dangerous to life. This is sufficient to impose criminal liability.
We determine an additional issue raised by both defendants. The definite sentences of one year imposed by
We have examined other issues raised by the defendants and find them to be without merit.
Accordingly, the judgments insofar as sentеnces are imposed for the convictions of reckless driving should be modified and each defendant sentenced to a definite sentence of imprisonment of 30 days on his reckless driving conviсtion and as so modified the judgments should be affirmed.
Hancock, Jr., J. P., Callahan, Doerr and Moule, JJ., concur.
Judgments unanimously modified on the law by reducing the sentence imposed upon the reckless driving conviction to a definite sentence of imprisonment of 30 days and as modified affirmed.