Opinion
18-028
08-21-2018
The PEOPLE of the State of New York, Plaintiff, v. Robert J. MURRAY, Jr., Defendant.
J. Thomas Fuoco, Assistant District Attorney, for the People Clair Montroy III, Esq., Orchard Park, for the Defendant
J. Thomas Fuoco, Assistant District Attorney, for the People
Clair Montroy III, Esq., Orchard Park, for the Defendant
Thomas P. Brown, J.
By an indictment filed March 28, 2018, Robert J. Murray Jr. stands charged with one count of criminally negligent homicide, in violation of section 125.10 of the Penal Law. He has entered a plea of not guilty.
This case is now before the court on defendant's motion to inspect the Grand Jury minutes and dismiss the indictment for legal insufficiency. In support of the motion, the court has read the affirmation of Clair A. Montroy III, Esq., dated July 10, 2018. In opposition to the motion, the court has read the affirmation of J. Thomas Fuoco, Esq., dated July 23, 2018. Both counsel submitted memoranda of law in support of their positions. The court held a conference with counsel on July 26, 2018.
Inspection of Grand Jury Minutes and Applicable Standards of Review:
The court will grant defendant's motion to inspect the grand jury minutes. The People have delivered the grand jury minutes to the court. Pursuant to defendant's motion, the Court has carefully reviewed the grand jury minutes and the evidence in support of the indictment, with an eye towards the applicable standards of proof set forth in §§ 70.10 and 190.65 of the Criminal Procedure Law.
As a preliminary matter, the court has decided that it is unnecessary to release the grand jury minutes to the defendant in order for his motions to be decided. Historically, the grand jury records have remained secret [ Matter of District Attorney of Suffolk County , 58 N.Y.2d 436, 461 N.Y.S.2d 773, 448 N.E.2d 440 (1983) ; People v. DiNapoli , 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449 (1970) ] and the court cannot glean from the instant case any facts or circumstances that would warrant a departure from this longstanding precedent.
The Grand Jury, of course, does not determine the guilt or innocence of the accused [ People v. Swamp , 84 N.Y.2d 725, 622 N.Y.S.2d 472, 646 N.E.2d 774 (1995) ], nor do its proceedings constitute a "mini-trial" [ People v. Patino , 170 Misc.2d 284, 648 N.Y.S.2d 241 (Nassau Co. 1996) ].
Moreover, an indictment is presumed to be based upon legal and sufficient evidence [ People v. Bergerson , 17 N.Y.2d 398, 402, 271 N.Y.S.2d 236, 218 N.E.2d 288 (1966) ; People v. Howell , 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867 ]. The burden rests upon the Defendant to demonstrate insufficiency [ People v. Glessing , 206 A.D.2d 786, 787, 615 N.Y.S.2d 115 (3rd Dept. 1994) ].
On a motion such as this, the court is required to view the record in the light most favorable to the People [ People v. Galatro , 84 N.Y.2d 160, 163, 615 N.Y.S.2d 650, 639 N.E.2d 7 (1994) ]. In determining whether there is legally sufficient evidence to support the charges brought by the Grand Jury, the standard of review is whether the Grand Jury was presented with competent evidence, which, if accepted as true, would establish every element of the offense charged and the defendant's commission of them [ People v. Warner-Lambert Co. 51 N.Y.2d 295, 299, 434 N.Y.S.2d 159, 414 N.E.2d 660 (1980) ]. A motion to dismiss the indictment for legally insufficient evidence should be denied where the evidence, if unexplained and uncontradicted, and viewed in a light most favorable to the People, would warrant conviction by a trial jury [ People v. Reeves , 195 A.D.2d 950, 600 N.Y.S.2d 587 (4th Dept. 1993), citing People v. Pelchat , 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 464 N.E.2d 447 (1984) ].
Evidence Before the Grand Jury :
Here, the evidence before the Grand Jury showed that the defendant drove the victim and two other persons from Andover, New York to Rochester, New York in order to buy illegal drugs. On the way to Rochester, the victim began to snort some heroin that was already in his possession. When he arrived in Rochester, the defendant noticed that the victim appeared to be sleeping. After leaving the car to buy and use drugs, the defendant and the two other persons got back in the car to return to Andover. On the way back, at some point between Dansville NY and Andover, the defendant stated that he realized the victim had "brown stuff" coming from his nose, and was changing colors. The defendant and the other persons then tried to wake the victim by shaking him, however, he did not wake up. At this point, a panic ensued, and the two other persons told the defendant that "they did not want to be a part of it." The defendant then drove those two persons to Andover, dropped them off at a residence and only then drove the victim to Jones Memorial Hospital in Wellsville NY, where he was pronounced dead of a drug overdose. There was evidence that the defendant subsequently gave a false statement to the police that he found the victim unconscious alongside a public highway.
The evidence before the Grand Jury further showed that, on the defendant's return route to Allegany County, there were hospitals in Dansville and Hornell, NY, closer than Jones Memorial Hospital, to which the defendant could have brought the victim with less delay, but did not. There was also evidence that the defendant drove "back roads" to Andover, prolonging the delay in getting the victim to a hospital, and that the delay caused by this conduct could have been fatal to the victim.
Applicable Law and Analysis :
Section 15.10 of the Penal Law provides that the minimal requirement for criminal liability is the defendant's performance of a voluntary act or the omission to perform an act which the defendant is physically capable of performing. Section 15 of the Penal Law defines an omission as "a failure to perform an act as to which a duty of performance is imposed by law."
Criminal negligence, such as is required to indict or convict for criminally negligent homicide, involves the failure to perceive a substantial risk under circumstances where the offender has a legal duty of awareness [ People v. Johnson , 131 A.D.2d 697, 516 N.Y.S.2d 773 (2nd Dept. 1987) citing People v. Haney , 30 N.Y.2d 328, 333 N.Y.S.2d 403, 284 N.E.2d 564 (1972) ].
Here, there was no evidence that the victim's death was in any way caused by the defendant's voluntary actions, as opposed to the victim's own actions in possessing and ingesting heroin [cf. People v. Sanford , 24 A.D.3d 572, 808 N.Y.S.2d 274 (2nd Dept. 2005) (defendant's voluntary actions precipitated victim's fatal fall) ]. Therefore, criminal liability can be imposed on the defendant only for his omission to act. In order to do so, it is necessary to find that the defendant had a duty to perform an act as to which a duty of performance is imposed by law, i.e., a legal duty.
In general, an omission to act "may be the basis for culpability only where a special relationship exists - like the relationship between parent and child, or an attorney and a client, which, under the circumstances, gives rise to a legal duty to act" [Greenberg, 6 NY Prac. Criminal Law , § 1:2 (4th ed.) ].
It is well established that, outside of a professional relationship, the legal duty to seek medical care for another person may be imposed only on that person's spouse, parent, legal guardian or someone who stands in loco parentis to that person [ People v. Robbins, 83 A.D.2d 271, 443 N.Y.S.2d 1016 (4th Dept. 1981) ; People v. Munck , 92 A.D.3d 63, 937 N.Y.S.2d 334 (3rd Dept. 2011) ].
The People contend that the defendant's delay in seeking medical care for the victim caused the death of the victim. But there is no evidence that the defendant's relationship with the victim was one that imposed a legal duty upon the defendant to seek medical care in the first place. The defendant was not the victim's parent, spouse, legal guardian or one who stood in loco parentis to the victim, i.e., someone who had assumed all the obligations incident to a parental relationship [ People v. Lilly , 71 A.D.2d 393, 422 N.Y.S.2d 976 (4th Dept. 1979) ].
To be sure, the driver of an automobile assumes a duty of care towards his passengers. But this duty of care has never been extended beyond the responsibility to operate the vehicle using reasonable care [ Irwin v. Mucha , 154 A.D.2d 895, 545 N.Y.S.2d 863 (4th Dept. 1989) ] . Its breach may support a conviction for criminally negligent homicide [ People v. VanDenBosch, 142 A.D.2d 988, 530 N.Y.S.2d 410 (4th Dept. 1988) ]. But it does not encompass a legal duty to seek medical attention for a driver's passengers. This type of legal duty does not require the operator to become an ambulance driver.
To say that the defendant had no legal duty to seek medical attention for the victim does not mean that he had no duty of any kind. Many if not most people would say he had a moral duty to do so. In fact, the evidence showed that the defendant in this case recognized he had a duty to drive the victim to a hospital, but only after he acceded to the wishes of his other passengers that they be driven home first. Whether the defendant's conduct in doing so breached a moral duty is not a question to be answered by this Court. It is not an inquiry for the Court to undertake in the first place, because the law does not impose criminal liability for the breach of a moral duty, only for the breach of a legal duty. The consequences of such a doctrine seem harsh, but nevertheless are the product of our law: "Generally, one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself. He need not shout a warning to a blind man headed for a precipice or to an absent-minded one walking into a gunpowder room with a lighted candle in his hand. He need not pull a neighbor's baby out of a pool of water or rescue an unconscious person stretched across the railroad tracks, though the baby is drowning or the whistle of an approaching train is heard in the distance [...] A moral duty to take affirmative action is not enough to impose a legal duty to do so" [ Wayne R. LaFave, Substantive Criminal Law , § 6.2(a), (Thomson/Reuters 2017) ].
Conclusion :
The evidence before the Grand Jury, even if uncontradicted and viewed in a light most favorable to the People, could not warrant a conviction for criminally negligent homicide by a trial jury. There was no evidence that the defendant breached a legal duty that he owed the victim. Therefore, the indictment must be dismissed for legal insufficiency.
This Decision shall also constitute the order of this court. It is so ORDERED.