People v. Caden N.People v. Caden N.
Decided and Entered: October 22, 2020
Calendar Date: September 16, 2020
Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds Fitzgerald, JJ.
Weeden A. Wetmore, District Attorney, Elmira (William D. Vandelinder of counsel), for respondent.
Lynch, J.
Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered August 16, 2019, which sentenced defendant upon his adjudication as a youthful offender.
In July 2018, defendant, then 18 years old, was driving his vehicle on Westinghouse Road in the Village of Horseheads, Chemung County with three passengers. As he was turning left from the southbound lane of Westinghouse Road onto Westlake Street, he collided with a motorcycle approaching in the northbound lane of Westinghouse Road, resulting in the deaths of the motorcycle‘s driver and passenger (hereinafter collectively referred to as the victims). A blood test taken a little less than three hours after the accident revealed the presence of THC in defendant‘s blood. He was thereafter charged by indictment with vehicular manslaughter in the first degree, two
Prior to trial, defendant requested a hearing under Frye v United States (293 F 1013 [DC Cir 1923]) to determine the admissibility of certain evidence pertaining to his alleged impairment at the time of the accident. County Court granted the request and, following the hearing, permitted a police sergeant and a state trooper to testify about their observations of defendant after the accident and his performance on certain field sobriety tests (hereinafter FSTs). However, the court precluded them from giving their “opinion regarding . . . the level of defendant‘s impairment” due to their failure to perform the full 12-step Drug Recognition Evaluation protocol. The court also limited testimony from any witness about “[a] correlation between blood levels of THC which may have been taken at the [emergency room] and [defendant‘s] impairment at the time of the crash.”
Following a bench trial, County Court found defendant guilty of vehicular manslaughter in the first degree, adjudicated him a youthful offender, sentenced him to a prison term of 1 to 3 years and ordered him to pay restitution.2
Defendant appeals. Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to prove that he operated his vehicle while impaired by marihuana and caused the victims’ deaths as a result. We disagree. When assessing the legal sufficiency of the evidence, we “view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Rudge, 185 AD3d 1214, 1215 [2020] [internal quotation marks and citations omitted], lv denied 35 NY3d 1070 [2020]; see People v Ramos, 19 NY3d 133, 136 [2012]).
As relevant here, “[a] person is guilty of vehicular manslaughter in the first degree when he or she commits the crime of vehicular manslaughter in the second degree . . . [and] causes the death of more than one other person” (
The term “impairment” as used in
Notably, under
With respect to causation, the People were required to prove that defendant “set in motion the events that led to the victims’ deaths” and “was a sufficiently direct cause of the ensuing deaths” (People v Ballenger, 106 AD3d 1375, 1377 [2013] [internal quotation marks, brackets and citations omitted], lv denied 22 NY3d 995 [2013]). “[A] defendant‘s conduct constitutes a sufficiently direct cause of death when the People prove (1) that [the] defendant‘s actions were an actual contributory cause of the death, in the sense that they forged a link in the chain of causes which actually brought about the death; and (2) that the fatal result was reasonably foreseeable” (People v Li, 34 NY3d 357, 369 [2019] [internal quotation marks, brackets and citation omitted]; see People v DaCosta, 6 NY3d 181, 184 [2006]).
At trial, a friend of defendant (hereinafter passenger 1) testified that defendant picked him up in his vehicle from the house of a mutual friend (hereinafter passenger 4) at approximately 4:00 p.m. on July 10, 2018 to take him to work. Two other individuals (hereinafter passengers 2 and 3) were present in defendant‘s vehicle and passenger 4 also got in. According to passenger 1, the group emptied tobacco from three small cigars and filled them each with marihuana. Passenger 1 explained that defendant then drove to the vicinity of Harris Hill in the City of Elmira, Chemung County, where the group — including defendant — smoked two of the marihuana cigarettes while defendant was driving. Passenger 1 testified that defendant took some turns over Harris Hill that were “a little quick,” prompting passenger 1 to fasten his seatbelt. Defendant then dropped passenger 1 off at work and went with the three other passengers to the mall.
The other passengers corroborated passenger 1‘s testimony that the group smoked marihuana before dropping passenger 1
As to the manner in which the accident occurred, the People elicited testimony from non-passenger witnesses Sidney Smith and Danielle Folk, who were both driving in the southbound lane of Westinghouse Road a few cars behind defendant‘s vehicle. Smith recalled seeing defendant‘s vehicle make an “abrupt turn” onto Westlake Street seconds before the accident and stated that she was able to see the motorcycle immediately before impact “not very far” from defendant‘s vehicle. Folk similarly testified that defendant made a “left turn” and “cut[] the motorcycle off almost immediately.” Folk, who was a couple of cars behind defendant at the time, stated that she was able to see the motorcycle “only an instant” before the accident. The People also presented evidence that the portion of Westinghouse Road that intersects with Westlake Street is relatively
David Ruhmel, a police officer, testified that he responded to the accident, smelled marihuana emanating from defendant‘s vehicle and found a “small plastic baggie” of marihuana on the pavement near the car. However, he did not smell marihuana on defendant‘s person and observed him to be coherent and steady on his feet. Sean Murray, a police sergeant, then arrived on the scene and accompanied defendant to the hospital, where he performed a series of FSTs. Although Murray conceded that defendant performed some of the FSTs in a satisfactory manner, he emphasized that defendant was unable to hold his eyes in a crossed position during a convergence test and described “a noticeable” fluttering under defendant‘s eyelids and a tremor in his right leg during a modified Romberg test. State trooper Brandon Salyerds, who watched Murray perform the FSTs, observed that defendant had bloodshot and watery eyes, but acknowledged such condition could have been caused by crying. Moreover, a physician who examined defendant at the hospital found his eyes to converge and dilate appropriately.
A blood test taken a little less than three hours after the accident revealed 2.2 ng/ml of delta-9 THC and 33 ng/ml of delta-9 carboxy THC in defendant‘s blood. The People‘s forensic toxicologist, Daniel Isenschmid, testified that delta-9 THC concentrations in the blood are highest at the time of smoking and generally taper off to very low levels a couple of hours later. Isenschmid explained that, although delta-9 carboxy THC is an inactive metabolite that does not have psychoactive effects, it can be used as a marker of prior cannabis use because it forms more slowly and then “remains elevated for a longer period of time after the delta-9 THC goes down.” According to Isenschmid, the level of carboxy THC in defendant‘s blood was a “relatively high concentration,” signifying that an even higher concentration of delta-9 THC had been present in defendant‘s blood at some earlier point in time. That said, Isenschmid noted that, unlike with alcohol, it was impossible to extrapolate the concentration of THC backwards to an earlier time. Elizabeth Spratt, another forensic toxicologist who testified for the People, explained that marihuana impacts a person‘s psychomotor performance and reaction time. Spratt noted that marihuana consumption can produce certain physical manifestations, such as bloodshot and watery eyes and a lack of
The People also presented evidence from an accident reconstructionist, who opined that the vehicle‘s point of rest in the oncoming traffic lane indicated that defendant had taken a short left-hand turn while prematurely cutting across the center line. Moreover, the information collected from the event data recorder in defendant‘s vehicle showed that, five seconds before impact, defendant was traveling in a straight line within the speed limit. From five seconds to 1½ seconds before impact defendant was “casually slowing down.” By 1½ seconds before impact, defendant‘s turning input had increased to five degrees, which the accident reconstructionist noted “was pretty insignificant . . . [and] [p]robably wouldn‘t even have changed his [lane].” However, by one second prior to impact, defendant‘s steering input increased to 55 degrees. The accident reconstructionist explained that it normally takes a person 1½ seconds to perceive a danger and timely react, testifying that defendant‘s turning motion “didn‘t allow the [motorcycle driver] enough time to see, perceive and react.” Based upon the evidence, the reconstructionist concluded that “[t]he primary cause of the crash was [defendant‘s] failure to yield [the] right-of-way” and his “left turn directly into the path of the motorcycle.” There was conflicting evidence as to the motorcycle‘s preimpact speed, with the People‘s accident reconstructionist estimating that the motorcycle was traveling between 25 and 30.7 miles per hour at impact and defendant‘s reconstructionist approximating a speed of 63.22 miles per hour. Defendant‘s accident reconstructionist opined that, had the motorcycle been traveling within the speed limit, defendant would have completed the turn without incident.
Viewing the foregoing evidence in the light most favorable to the People, and utilizing the “impairment” standard defined above, we conclude that there is a valid line of reasoning
With respect to causation, the People demonstrated that defendant set in motion the events that led to the victims’ death by abruptly turning left in front of the approaching motorcycle on a 40 mile-per-hour roadway. It was foreseeable that the victims could die as a result of defendant‘s conduct (see generally People v Li, 34 NY3d at 369-370). The conflicting expert opinions as to the motorcycle‘s preimpact speed presented credibility issues for County Court to resolve (see People v Kouao, 177 AD3d 1335, 1335 [2019], lv denied 34 NY3d 1160 [2020]). In any event, defendant‘s conduct need not have been the sole cause of death for criminal liability to attach (see People v DaCosta, 6 NY3d at 184). “Even an intervening, independent agency will not exonerate [a] defendant unless the death is solely attributable to the secondary agency, and not at all induced by the primary one” (Matter of Anthony M., 63 NY2d 270, 280 [1984] [internal quotation marks and citations omitted]; accord People v Li, 34 NY3d at 370). Although passenger 2 estimated that the motorcycle was 50 yards away when defendant initiated his turn, she admitted to having consumed marihuana before the accident. By contrast, Folk and Smith both indicated that defendant turned within close proximity to the motorcycle, with Folk stating that defendant “cut[] the motorcycle off almost immediately.” The evidence
Although not challenging County Court‘s Frye ruling, defendant next contends that the court violated its Frye ruling and abused its discretion in admitting certain opinion testimony from Spratt on the issue of defendant‘s alleged impairment. Generally, “trial courts possess broad discretion to make evidentiary rulings” precluding or admitting evidence (People v Hemphill, 35 NY3d 1035, 1036 [2020]; see People v Aska, 91 NY2d 979, 981 [1998]), and, “absent an abuse of discretion, those rulings should not be disturbed on appeal” (People v Collins, 126 AD3d 1132, 1133 [2015] [internal quotation marks and citations omitted], lv denied 25 NY3d 1161 [2015]). Expert opinion testimony is proper “when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (People v Rivers, 18 NY3d 222, 228 [2011] [internal quotation marks and citations omitted]).
Defendant contends that County Court erred by allowing Spratt to utilize his performance on the FSTs as a component of her opinion that defendant was impaired at the time of the accident when both Murray and Salyerds were precluded from opining as to his impairment due to their failure to administer the full Drug Recognition Evaluation protocol. Spratt, however, was a board-certified forensic toxicologist who possessed specialized knowledge about the manner in which marihuana affects psychomotor capabilities and was qualified to give an opinion on the matter (see People v MacDonald, 227 AD2d 672, 674-675 [1996], affd 89 NY2d 908 [1996]; see generally People v Lamont, 21 AD3d 1129, 1132 [2005], lv denied 6 NY3d 835 [2006]). In any event, Spratt‘s opinion regarding defendant‘s impairment was not solely based on the FST results, and she confirmed that her opinion regarding defendant‘s impairment would remain the same even if no FSTs had been performed. As such, we perceive neither inconsistency nor error in the court‘s admission of such testimony. Moreover, contrary to defendant‘s contention, Spratt did not base her opinion that he was impaired at the time of the accident on the specific level of THC found in his blood and expressly acknowledged that “you can‘t back extrapolate . . . with marihuana.” Rather, Spratt referenced the active THC found in defendant‘s blood as background information relevant to her assessment, based upon a constellation of factors, that defendant was impaired by the marihuana that he had smoked shortly before the accident. Her opinion was informed by a variety of factors, including the timing of the accident in relation to when the peak effects of marihuana typically occur, the circumstances of the accident, defendant‘s “outward signs” of impairment and the fact that active THC was found in his blood thereafter. As Spratt was qualified to render such an opinion and her testimony was within the permissible bounds of County Court‘s Frye ruling, County Court did not abuse its discretion in admitting her testimony (see People v Nicholson, 26 NY3d 813, 829 [2016]).
Defendant further contends that the presumption set forth in
Therefore, defendant‘s constitutional challenges fail. Furthermore, recognizing that this was a bench trial, County Court did not err in denying defendant‘s request to deviate from the standard set forth in the Criminal Jury Instructions (hereinafter CJI) to reflect that the presumption applied only if the court found defendant to be the sole proximate cause of the victims’ deaths. As previously explained, defendant‘s contention in that respect ignores the well-settled premise that criminal liability “will attach even if the defendant‘s conduct is not the sole cause of death” (see People v DaCosta, 6 NY3d at 184; see People v Li, 34 NY3d at 369). Indeed, “if a driver‘s operation of a vehicle cannot be deemed a proximate cause of the subject accident, then the rebuttable presumption would not arise” (People v Mojica, 62 AD3d 100, 110 [2009] [emphasis added], lv denied 12 NY3d 856 [2009]).4 As such, County Court did not err in declining to revise the CJI charge on vehicular manslaughter in the first degree with respect to the presumption and appropriately adhered to the expanded CJI
Defendant also contends that County Court abused its discretion in excluding certain testimony about the motorcycle driver‘s positive blood test for THC. At the outset, we note that the trial evidence included an exhibit of the motorcycle driver‘s postmortem toxicology report, which showed a positive THC level of 0.73 ng/ml. County Court, therefore, had evidence before it regarding the fact that THC was found in the motorcycle driver‘s blood. It merely precluded additional trial testimony on the matter. To the extent that such testimony may have been relevant to the issue of the motorcycle driver‘s impairment at the time of the collision, such impairment, even if it could be established, would not have constituted a superseding cause sufficient to absolve defendant of criminal liability under these circumstances, given the proof that the manner in which he turned in front of the motorcycle would not have given even a nonimpaired person sufficient time to react (see People v Peryea, 68 AD3d at 1147). Therefore, we cannot conclude that County Court committed reversible error in excluding such testimony (compare People v Lazartes, 23 AD3d 400, 405-406 [2005]).
Finally, we agree with defendant that County Court erred in failing to give an adverse inference charge with respect to the People‘s failure to preserve certain paint transfers on the motorcycle‘s crash bar bolt that were material to the defense expert‘s assessment of the motorcycle‘s preimpact speed. Nevertheless, County Court was made aware of the People‘s alleged failure to preserve this evidence and, given the strength of the People‘s proof, we conclude that “there is no significant probability” that defendant would have been acquitted but for County Court‘s failure to provide an adverse inference charge (People v Viruet, 29 NY3d 527, 533 [2017] [internal quotation marks and citations omitted]; see People v Strife, 167 AD3d 1095, 1098 [2018]). In our view, the error was harmless.
Defendant‘s remaining contentions, to the extent not specifically addressed herein, have been considered and found lacking in merit.
Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed, and matter remitted to the County Court of Chemung County for further proceedings pursuant to