Opinion
2014-02-6
The PEOPLE of the State of New York, Respondent, v. Nim T. FUNG, Appellant.
Janet DiFiore, District Attorney (Laurie Sapakoff, Steven Bender and Richard Longworth Hecht of counsel), for respondent. McMillan Constabile Maker & Perone, LLP, Larchmont (Stewart A. McMillan of counsel), for appellant.
Janet DiFiore, District Attorney (Laurie Sapakoff, Steven Bender and Richard Longworth Hecht of counsel), for respondent. McMillan Constabile Maker & Perone, LLP, Larchmont (Stewart A. McMillan of counsel), for appellant.
PRESENT: TOLBERT, J.P., NICOLAI and IANNACCI, JJ.
Appeal from a judgment of the Justice Court of the Village of Irvington, Westchester County (Desmond C.B. Lyons, J.), rendered May 16, 2011. The judgment convicted defendant, after a nonjury trial, of leaving the scene of an incident without reporting.
ORDERED that the judgment of conviction is affirmed.
After a nonjury trial, defendant was convicted of leaving the scene of an incident without reporting, in violation of Vehicle and Traffic Law § 600(2)(a), which provides, in pertinent part, that “[a]ny person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person, shall, before leaving the place where the said personal injury occurred, stop [and] exhibit his or her license and insurance identification card for such vehicle ...” In this case, a motorcyclist, proceeding northbound on the Saw Mill River Parkway in Westchester County, lost control of his vehicle, and collided with a stanchion. As a result, he was catapulted into the air and landed on the pavement of the southbound Saw Mill River Parkway. Shortly thereafter, the motorcyclist's body was struck and run over by defendant's vehicle, and then by a second, unidentified motorist. Both drivers stopped but left without exhibiting their licenses or insurance identification cards. The driver of the second vehicle was never apprehended.
The motorcyclist died as a result of his injuries. After performing an autopsy, the Acting Chief Westchester County Medical Examiner determined that the motorcyclist had died as a result of blunt force trauma, but was unable to determine whether the death had occurred when the motorcyclist had collided with the stanchion, when he had landed on the pavement, when he had been struck by defendant, when he had been struck by the unidentified second motorist, or by a combination thereof. On appeal, defendant asserts, among other things, that his guilt was not proven beyond a reasonable doubt and that the verdict of guilt was against the weight of the evidence, because the People failed to establish that the motorcyclist was alive when he was struck by defendant's vehicle, which, defendant claims, is a necessary element of the offense.
In determining whether a defendant's guilt is supported by legally sufficient evidence, the facts must be viewed in a light most favorable to the prosecution ( People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ). A verdict is legally sufficient where there is a valid line of reasoning and permissible inferences from which a rational trier of fact could have determined that the elements of the offense were proven beyond a reasonable doubt. In other words, proof is legally sufficient when, “as a matter of law,” a trier of fact “could logically conclude that the People sustained its burden of proof” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Here, there is a valid line of reasoning and permissible inferences from which a rational trier of fact could have determined that defendant's guilt was proven beyond a reasonable doubt.
Contrary to defendant's contention, Vehicle and Traffic Law § 600(2)(a) does not require that the People establish beyond a reasonable doubt that the injured person was alive before contact with the vehicle operated by the defendant ( see CJI2d [N.Y.], Leaving Scene Of An Incident Without Reporting [B Misdemeanor/A Misdemeanor ], Vehicle & Traffic Law § 600 [2]; cf. Barton v. State, 936 N.E.2d 842 [Ind.App.2010]; State v. Wagner, 97 Wash.App. 344, 984 P.2d 425 [1999] [prosecution conceded that body in the road was dead prior to being struck by the defendant's vehicle]; Wash. Rev. Code § 46.52.020[1] ).
Vehicle and Traffic Law § 600(2)(a) requires that the People prove that the defendant “at least had cause to know that he had hit a person” ( People v. Lewis, 162 A.D.2d 760, 764, 557 N.Y.S.2d 674 [1990] ). We find that the term “cause to know” means that a driver is criminally liable if he or she leaves the scene of an accident and actually knew of the injury or should have reasonably anticipated that, under the circumstances, the accident would have resulted in an injury ( see People v. Hakala, 270 App.Div. 612, 614, 61 N.Y.S.2d 718 [1946];compare Sandwick v. District of Columbia, 21 A.3d 997, 1000 [U.S.App.D.C.2011]; Barton v. State, 936 N.E.2d at 849;McCown v. State, 192 S.W.3d 158, 163 [Tex.App.2006];State v. Mancuso, 652 So.2d 370, 372 [Fla.1995];People v. Holford, 63 Cal.2d 74, 80, 45 Cal.Rptr. 167, 171, 403 P.2d 423, 427 [1965] ). Under the facts and circumstances of this case, the People established beyond a reasonable doubt that defendant “had cause to know that personal injury” had been caused to the motorcyclist, and that the act of striking the body with his vehicle while driving southbound on the Saw Mill River Parkway was of such a nature that he should have reasonably anticipated that it would have resulted in injury to the motorcyclist. The fact that the medical examiner could not conclusively determine the event or events that caused the motorcyclist's death does not warrant reversal of defendant's conviction. Accordingly, defendant's guilt of leaving the scene of an incident without reporting was established beyond a reasonable doubt.
Weight of the evidence review requires an appellate court to conduct an independent review of the evidence, and determine whether an acquittal would not have been unreasonable ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1). “If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence, the court then decides whether the [trier of fact] was justified in finding the defendant guilty beyond a reasonable doubt” ( People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;see People v. Romero, 7 N.Y.3d 633, 642–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1).
Defendant left his car and looked at the body on the road prior to leaving the scene of the incident. A witness to the accident told defendant that he had hit a man. Thus, defendant knew the motorcyclist was injured. Moreover, the nature of the accident provided defendant with cause to know that the motorcyclist had been injured at the time defendant's vehicle struck him. Accordingly, an acquittal would have been unreasonable. Thus, the verdict of guilt was not against the weight of the evidence.
The Justice Court correctly denied defendant's pretrial motion to dismiss the accusatory instrument on the ground that he had been denied his statutory and constitutional rights to a speedy trial. Defendant concedes that a period of 56 days should not be charged to the People, as that period encompassed an adjournment on consent ( seeCPL 30.30[4][b]; People v. Worley, 66 N.Y.2d 523, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985] ). In addition, at a court appearance on August 24, 2009, defendant's counsel explicitly agreed that the period between August 24 and October 5, 2009, would be chargeable to the People, and the period from October 6 through November 2, 2009, consisting of 27 days, would be chargeable to defendant on consent. Counsel's consent was “clearly expressed to relieve the People of the responsibility for that portion of the delay” ( People v. Smith, 82 N.Y.2d 676, 678, 601 N.Y.S.2d 466, 619 N.E.2d 403 [1993];see People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82 [1992];People v. Sawh, 58 A.D.3d 760, 761, 870 N.Y.S.2d 803 [2009];People v. Matthews, 227 A.D.2d 313, 313–314, 642 N.Y.S.2d 682 [1996];People v. Allen, 9 Misc.3d 135[A], 2005 N.Y. Slip Op. 51681[U], 2005 WL 2682136 [App. Term, 2d & 11th Jud. Dists. 2005]; cf. People v. Nunez, 47 A.D.3d 545, 546, 851 N.Y.S.2d 128 [2008] ). Furthermore, an additional 14 days of delay, from November 2, 2009 until November 16, 2009, are not chargeable to the People. Contrary to defendant's contention, the record indicates that a court proceeding was conducted on November 2, 2009, at which defendant's counsel was not present ( seeCPL 30.30[4][f]; People v. Bahadur, 41 A.D.3d 239, 239–240, 841 N.Y.S.2d 5 [2007];People v. Brown, 23 A.D.3d 703, 705, 803 N.Y.S.2d 304 [2005];People v. Reed, 19 A.D.3d 312, 317–318, 798 N.Y.S.2d 47 [2005];People v. Clark, 11 A.D.3d 706, 784 N.Y.S.2d 563 [2004];People v. Cook, 30 Misc.3d 134[A], 2011 N.Y. Slip Op. 50084[U], 2011 WL 255728 [App. Term, 9th & 10th Jud. Dists. 2011] ). Based on the periods that were not chargeable to the People, the People were ready for trial within the required 183–day period, which the parties agree applies in this case ( seeCPL 30.30[1][a], [b]; [5][c], [d]; People v. Cooper, 98 N.Y.2d 541, 750 N.Y.S.2d 258, 779 N.E.2d 1006 [2002];People v. Pope, 96 A.D.3d 1231, 1232, 947 N.Y.S.2d 634 [2012] ).
Defendant's claim that his constitutional right to a speedy trial was violated is unpreserved for review, as his motion in the Justice Court failed to address the factors to be evaluated on such a claim ( seeCPL 30.20; People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975];People v. Mendez, 259 A.D.2d 361, 362, 688 N.Y.S.2d 124 [1999] ). In any event, defendant's constitutional right to a speedy trial was not violated.
Defendant's contention that a written statement he provided to police detectives should have been suppressed, because the detectives considered him the “prime suspect” in this case, and, therefore, he was in custody when he provided the statement, is without merit ( see People v. Smielecki, 77 A.D.3d 1420, 1421, 908 N.Y.S.2d 485 [2010];People v. Neil, 24 A.D.3d 893, 894, 805 N.Y.S.2d 193 [2005] ). Defendant was not in custody when he provided the statement to the detectives at his home. He was not restrained or handcuffed. He was not arrested or charged after providing the statement, and the meeting at his home lasted only approximately 90 minutes. In any event, the detectives advised defendant of his Miranda rights before he provided the statement ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966];People v. Paulman, 5 N.Y.3d 122, 129, 800 N.Y.S.2d 96, 833 N.E.2d 239 [2005];People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969];People v. Cuyler, 95 A.D.3d 900, 901, 943 N.Y.S.2d 211 [2012];People v. Hook, 80 A.D.3d 881, 914 N.Y.S.2d 755 [2011];People v. Hesterbay, 60 A.D.3d 564, 565, 875 N.Y.S.2d 478 [2009];People v. Lunderman, 19 A.D.3d 1067, 1068–1069, 796 N.Y.S.2d 481 [2005] ). Even if defendant had been in custody, his contention that the statement should have been suppressed because he was unable to understand his Miranda rights and the waiver of presence of counsel, which were provided to him in English, is meritless. The record indicates that defendant “had a sufficient command of the English language to appreciate the import of the Miranda warnings” ( People v. Zadorozhnyi, 267 A.D.2d 263, 264, 699 N.Y.S.2d 306 [1999];see People v. Madrid, 52 A.D.3d 530, 531, 859 N.Y.S.2d 717 [2008];People v. Mora, 36 A.D.3d 1142, 1143, 827 N.Y.S.2d 365 [2007];People v. Zuluaga, 148 A.D.2d 480, 481, 538 N.Y.S.2d 628 [1989];People v. Tineo, 144 A.D.2d 507, 533 N.Y.S.2d 979 [1988] ).
Accordingly, the judgment of conviction is affirmed.