Opinion
596 KA 16-02162
11-20-2020
The PEOPLE of the State of New York, Respondent, v. John E. PINNOCK, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the facts, the indictment is dismissed, and the matter is remitted to Ontario County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant was convicted following a jury trial of one count of criminally negligent homicide ( Penal Law § 125.10 ) and two counts of assault in the third degree (§ 120.00 [3]). The incident giving rise to those charges was an accident involving multiple vehicles that occurred on Route 96 in Farmington after the driver's side wheel on the pickup truck defendant was driving came off and rolled into an oncoming lane of traffic. When the wheel came off, defendant, age 50 with no criminal record, was driving slowly on the side of the road with his four-way flashers activated. A delivery truck hit the detached wheel, tipped over and collided with a third vehicle, killing its operator, before colliding with a fourth vehicle and injuring its two occupants. On appeal, defendant challenges the legal sufficiency and weight of the evidence, contending that his operation of the pickup truck in a state of disrepair cannot be a basis of criminal liability.
We agree with defendant that the verdict is against the weight of the evidence. The testimony at trial established that defendant came into possession of the pickup truck several weeks before the accident, but that its last valid inspection was three years before the accident. Although the People established that the pickup truck had a forged inspection sticker, there was no evidence that defendant knew it was forged. Several witnesses testified that, in the three days preceding the accident, the pickup truck was making loud grinding noises and that, either the day before the accident or the day of the accident, defendant asked a person with mechanical experience what that person thought might be the issue. That person opined that the noise was likely being caused by a wheel or the brakes.
An inspection of the driver's side wheel and truck after the accident established some significant problems with the wheel, and witnesses testified that the existence of problems would have been noticeable and would have created issues with steering. The testimony also established, however, that the severity of the problems could not have been known to the operator unless the wheel was removed from the truck.
A review of the weight of the evidence requires us to first determine whether an acquittal would have been unreasonable (see People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). If we determine that an acquittal would not have been unreasonable, then we "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" ( id. ). We thus " ‘serve, in effect, as a second jury’ with the power to ‘independently assess all of the proof’ " ( People v. Gonzalez , 174 A.D.3d 1542, 1544, 105 N.Y.S.3d 674 [4th Dept. 2019], quoting People v. Delamota , 18 N.Y.3d 107, 116-117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ).
Here, inasmuch as an acquittal would not have been unreasonable, we must independently weigh the evidence and determine whether the People proved defendant's guilt beyond a reasonable doubt. Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
The evidence presented at trial failed to establish beyond a reasonable doubt that defendant was criminally negligent in his operation of the truck. Pursuant to Penal Law § 15.05 (4), "[a] person acts with criminal negligence with respect to a result ... when he [or she] fails to perceive a substantial and unjustifiable risk that such result will occur ... The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." With respect to the crimes at issue, "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person" ( § 125.10 ) and, as relevant here, a person is guilty of assault in the third degree when "[w]ith criminal negligence, he [or she] causes physical injury to another person by means of ... a dangerous instrument," i.e., a vehicle (§ 120.00 [3]; see generally People v. Cabrera , 10 N.Y.3d 370, 375, 858 N.Y.S.2d 74, 887 N.E.2d 1132 [2008] ).
It is well settled that " ‘the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community's general sense of right and wrong . Moreover, criminal negligence requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result; nonperception of a risk , even if [the proscribed result occurs], is not enough ’ " ( Cabrera , 10 N.Y.3d at 376, 858 N.Y.S.2d 74, 887 N.E.2d 1132, quoting People v. Conway , 6 N.Y.3d 869, 872, 816 N.Y.S.2d 731, 849 N.E.2d 954 [2006] ; see People v. Haney , 30 N.Y.2d 328, 333, 335, 333 N.Y.S.2d 403, 284 N.E.2d 564 [1972] ).
Based on the foregoing principles, we conclude that the People failed to prove beyond a reasonable doubt that defendant engaged in some blameworthy conduct that either created or contributed to a substantial and unjustifiable risk (cf. People v. Asaro , 21 N.Y.3d 677, 682-685, 976 N.Y.S.2d 10, 998 N.E.2d 810 [2013] ; People v. Paul V.S. , 75 N.Y.2d 944, 944-945, 555 N.Y.S.2d 685, 554 N.E.2d 1273 [1990] ; People v. Ricardo B. , 73 N.Y.2d 228, 235-236, 538 N.Y.S.2d 796, 535 N.E.2d 1336 [1989] ; People v. Garner , 144 A.D.3d 940, 940, 41 N.Y.S.3d 124 [2d Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ; People v Olsen , 124 A.D.3d 1084, 1085-1087, 1 N.Y.S.3d 555 [3d Dept. 2015], lv denied 26 N.Y.3d 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 [2015] ). At most, the evidence established that defendant failed to perceive a risk, which does not establish criminal negligence beyond a reasonable doubt (see e.g. Cabrera , 10 N.Y.3d at 377-378, 858 N.Y.S.2d 74, 887 N.E.2d 1132 ; People v. Boutin , 75 N.Y.2d 692, 695-698, 556 N.Y.S.2d 1, 555 N.E.2d 253 [1990] ; cf. People v. Congregation Khal Chaisidei Skwere , 232 A.D.2d 919, 920-921, 649 N.Y.S.2d 499 [3d Dept. 1996], lv denied 89 N.Y.2d 984, 656 N.Y.S.2d 743, 678 N.E.2d 1359 [1997] ). Moreover, even if defendant could or should have perceived the risk that a tire on the truck would come off while he was operating the vehicle, the risk that the proscribed result (i.e., the tire coming to rest in the road and then causing a delivery truck to overturn and fall on a car, killing its driver) would occur was not substantial. In sum, this was a tragic and freak accident that does not give rise to criminal liability.
In light of our determination, we do not address defendant's remaining contention.