| People v Bender |
| Decided on March 20, 2025 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered:March 20, 2025
113219 CR-22-2119
v
Donald Bender, Appellant.
Calendar Date:January 7, 2025
Before:Clark, J.P., Reynolds Fitzgerald, Ceresia, McShan and Powers, JJ.
Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for appellant.
Lee C. Kindlon, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Ceresia, J.
Appeals (1) from a judgment of the County Court of Albany County (Andra Ackerman, J.), rendered July 27, 2021, upon a verdict convicting defendant of the crime of reckless endangerment in the first degree, and (2) by permission, from an order of said court, entered October 18, 2022, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
On the morning of June 27, 2018, defendant was driving on Central Avenue, a four-lane road with a center turning lane, in the Town of Colonie, Albany County. Eyewitnesses observed defendant's vehicle strike three other vehicles, causing one to flip over, before defendant's vehicle ultimately left the road and crashed into a house. As a result, defendant was charged by indictment with reckless endangerment in the first degree and driving while ability impaired by drugs. The matter proceeded to a jury trial and, following dismissal of the latter charge, the jury convicted defendant of the former. Defendant was thereafter sentenced to an indeterminate prison term of 2⅓ to 7 years. He later moved pursuant to CPL article 440 to vacate the conviction on constitutional and statutory speedy trial grounds, and County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the denial of his motion. We affirm.
Defendant first argues that his conviction of reckless endangerment in the first degree is not supported by legally sufficient evidence and is against the weight of the evidence because, although he concededly acted recklessly, the proof did not show that he did so with depraved indifference to human life. "[D]epraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (People v Suarez,
The trial evidence revealed the following. The morning in question was sunny and clear, and traffic was heavy on Central Avenue. Defendant, who was driving a sport utility vehicle (hereinafter SUV) in an eastbound direction toward the City of Albany, was seen weaving between the lanes of traffic. Defendant then drove the SUV sharply out of its lane and struck a car being towed on a flatbed behind a tow truck. This occurred with such force that the SUV was lifted up onto the flatbed and became lodged upon it for 8 to 10 seconds. When the tow truck driver noticed [*2]what was happening, he began to pull his truck off of Central Avenue, whereupon the SUV broke away and, according to a witness, "all the molding fell off in the road." The tow truck driver also observed that defendant's front passenger tire was flat. Nevertheless, defendant accelerated and continued weaving through traffic.
Approximately a minute and a half later, defendant rear-ended a minivan so powerfully that the driver's head hit the roof, causing a concussion and severe whiplash. After that impact, the minivan driver tried to steer his vehicle out of defendant's path but he could feel the SUV pushing him forward. An eyewitness noted that defendant appeared to be intentionally "hitting [the minivan], again and again and again," as he was "pushing [the minivan] down Central Avenue." This witness could see defendant inside the SUV with his eyes open, his hands on the steering wheel and "a look of rage on his face." The minivan driver was eventually able to pull into the center turning lane, after which defendant drove off.
Shortly thereafter, the driver of a sedan was proceeding along Central Avenue when she heard car horns blaring in the distance behind her. She then heard a loud boom and felt a hard impact from the SUV as it struck the driver's side of her vehicle, propelling her forward. As the sedan driver attempted to get out of defendant's way, she looked over and could see defendant's hands on the steering wheel, and she watched as he steered toward her again. The SUV then struck the sedan a second time, forcing it up onto the curb, where it crashed into a fire hydrant and flipped over. The sedan came to rest with the hydrant having pierced its roof, about one foot from the driver's head, as she was hanging upside down. The driver was able to roll down her broken window and crawl out.
Next, the SUV left Central Avenue, went into a motel parking lot area and through some trees, before crashing into a house, with the front end of the SUV becoming lodged in the house's basement. Directly above the SUV, a 12-year-old girl was in her bedroom, and she told her father that a car had just crashed into the house below her window. Defendant exited the SUV and began yelling at a gathering crowd of onlookers, lunging at them and swinging a Bible toward them. When a police officer approached to handcuff defendant, he flipped forward onto the ground and the officer had to wrestle him for a few seconds. Data collected from the SUV's airbag control module revealed that the vehicle's brake was not engaged at all during the eight seconds prior to the final crash and that, over the course of its final tenth of a mile of travel, the gas pedal was fully depressed.
Defendant presented testimony of a doctor who diagnosed him, approximately seven months after the charged crimes occurred, with mild obstructive sleep apnea and excessive daytime sleepiness. The doctor testified that defendant had most likely suffered from these conditions for more than a year [*3]prior to the diagnoses. Although the doctor advised defendant not to drive following these diagnoses, the doctor also testified that it is "very difficult" to fall asleep while driving. A nurse practitioner who treated defendant for his sleep issues after he was diagnosed recommended that he not drive, but further explained that falling asleep while driving happened in only about 10 to 30 patients of the thousands her office treated per year.
The foregoing evidence, viewed in the light most favorable to the People, was legally sufficient to establish that defendant acted with depraved indifference to human life. Testimony from multiple eyewitnesses indicated that defendant, fully awake and bearing an expression of rage, drove indiscriminately along a heavily trafficked road and essentially played an extreme game of bumper cars with his fellow motorists. In so doing, defendant put countless lives at risk and indeed left serious crashes in his wake. Defendant never stopped or pulled over after any of his collisions. Instead, he continued on each time, stopping only when his vehicle finally crashed into a house. We note that defendant's actions herein are in many respects akin to driving along a crowded sidewalk, which is considered to be one of the quintessential examples of depraved indifference (see People v Heidgen,
Defendant attempts to distinguish this case from other cases of depraved indifference on the basis that, unlike here, those other cases involved circumstances such as running red lights, driving into oncoming traffic or traveling well in excess of the speed limit (see e.g. People v Herrera,
Regarding defendant's weight of the evidence challenge, we are similarly unpersuaded. Even assuming for the sake of argument that a different verdict would not have been unreasonable, defendant's conviction is amply supported by the evidence (see People v Doane,
Defendant also contends that County Court erred in prohibiting him from offering certain psychiatric [*4]evidence. A defendant's constitutional right to present a defense must be carefully guarded, and, generally speaking, trial courts should be mindful that preclusion is to be ordered sparingly, particularly when a lesser sanction — such as a brief adjournment — will suffice (see generally People v Sidbury,
When it comes to the presentation of a psychiatric defense, certain procedures are required to be followed prior to trial; namely, within 30 days after entry of a plea of not guilty to an indictment, a defendant must serve upon the People and file with the court a written notice of his or her intention to introduce psychiatric evidence (see CPL 250.10 [2]; People v Silburn,
Here, it is undisputed that defendant did not file a timely notice pursuant to CPL 250.10. Thus, as "[t]he decision whether to permit psychiatric evidence despite a failure to provide timely notice lies within the sound discretion of the trial court" (People v Bourne,
Approximately a year and a half after defendant was arraigned, and five weeks before trial, defense counsel learned of a supposed connection between defendant's bipolar disorder and his sleep disorder. Despite that, no application for permission to file a late notice was made at that time. Rather, it was not until less than a week before trial, and then only in response to a motion by the People to preclude psychiatric evidence, that defendant finally cross-moved to file a late notice. Critically missing from defendant's application was any showing of good cause for waiting until essentially the eve of trial before attempting to obtain the requisite court permission (see People v Durham,
Defendant also failed to demonstrate that the proposed psychiatric defense had any merit (see People v Taglianetti,
Given the lack of good cause and failure to identify any merit, it cannot be said that County Court abused its discretion in declining defendant's application to serve late notice of psychiatric evidence pertaining to the supposed, yet unspecified, impact of defendant's bipolar disorder on his sleep disorder (see People v Taglianetti,
Defendant's remaining contentions on his direct appeal do not warrant extended discussion. Defendant was not denied his right to a fair trial when the People mentioned in their opening remarks that he was impaired by marihuana while driving, and then failed to adduce proof of such impairment. Noting that, at the time of the opening statement, the charge of driving while ability impaired by drugs was still pending, it was not improper for the People to comment on what they expected the evidence to show. The record does not reflect that the People acted in bad faith, nor was defendant unduly prejudiced, as County Court instructed the jury to disregard any reference to defendant's alleged impairment subsequent to that charge having been dismissed (see People v Bramble,
Turning finally to defendant's appeal from the order denying his CPL article 440 motion, defendant asserts that his constitutional and statutory speedy trial rights were violated. However, as defendant concedes, his failure to raise this issue in a pretrial motion to dismiss the indictment renders the matter unpreserved (see CPL 210.20 [1] [g]; [2]; People v Lawrence,
Reynolds Fitzgerald and McShan, JJ., concur.
Clark, J.P. (concurring in part and dissenting in part).
We concur with most of the majority's conclusions regarding defendant's challenges on direct appeal, and fully with their decision addressing defendant's appeal from the denial of his CPL article 440 motion. We also agree with the majority's recitation of the relevant facts underlying defendant's conviction for reckless endangerment in the first degree. However, in our view, those facts are not legally sufficient to support said conviction and, as such, we respectfully dissent on that issue.
Defendant concedes that, throughout the ordeal detailed by the majority, he behaved recklessly, but he argues that the People's proof was legally insufficient to establish that he acted with the requisite mens rea of depraved indifference to human life. We agree. "When reviewing a legal sufficiency claim, we must determine whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that each and every element of the charged crime had been proven beyond a reasonable doubt" (People v Shamsuddin,
As the majority details, on the morning of June 27, 2018, defendant was driving his vehicle in the Town of Colonie, Albany County when he collided with several vehicles — causing one to flip over — before hitting a curb and crashing into the foundation of a house. We acknowledge that the People were able to rely on the circumstantial evidence surrounding defendant's conduct to establish that he acted with the requisite mens rea of depraved indifference to human life (see People v Heidgen,
Powers, J., concurs.
ORDERED that the judgment and the order are affirmed.
Footnote 1: We disagree with defendant that, during cross-examination of a defense witness, the People opened the door to the introduction of the precluded psychiatric evidence (compare People v George,
Footnote 2: According to crash data from defendant's vehicle, he was traveling between 48 and 49 miles per hour in the five seconds preceding the last crash, except that the vehicle registered a speed of 57 miles per hour in the last second, likely as a result of the vehicle going airborne before crashing into the house. Video evidence from public transit buses in the vicinity showed that the posted speed limit was 40 miles per hour.