People v. Kirkpatrick

Nov 4, 1991
Versions:177 A.D.2d 508
575 N.Y.S.2d 718
1991 N.Y. App. Div. LEXIS 14195

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hillery, J.), rendered February 10, 1987, convicting him of murder in the second degree (two counts), assault in the first degree, operating a motor vehicle under the influence of alcohol, and driving with ability impaired by alcohol, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal, the defendant asserts, inter alia, that the trial evidence does not demonstrate, beyond a reasonable doubt, that his conduct rose to the level of evincing a depraved indifference to human life. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The trial evidence reveals that the defendant had consumed at least two "six-packs” of beer and was found by witnesses to have been intoxicated. Moreover, there was cumulative, detailed testimony describing the defendant’s reckless driving prior to the fatal collision between his automobile and that of another which left his front passenger dead and the occupant *509of the other car dead as well. Witnesses who were in the defendant’s automobile at the time of the accident as well as earlier in the evening, described how the defendant would tailgate, pass numerous vehicles, drive at excessive speeds, and drive and remain in the opposite lane of traffic until oncoming vehicles were dangerously close. The fatal head-on collision occurred while the defendant’s vehicle was in the opposite lane of traffic, operating at a speed estimated to be in excess of 90 miles per hour. We conclude that the totality of the defendant’s conduct demonstrates a depraved indifference to human life and that the defendant’s guilt of murder in the second degree was sufficiently established (see, People v Gomez, 65 NY2d 9, 12).

We have reviewed the defendant’s remaining contentions and find them either to be unpreserved for appellate review or without merit. Mangano, P. J., Bracken, Lawrence and O’Brien, JJ., concur.