People v. Marchese
Courts Discusses Hit and Run of an Intoxicated Passenger
The defendant, who was an employee of a bar, assisted an intoxicated patron of his place of employment by giving her a ride to her destination. She was distraught and screaming and requested that the defendant to stop and let her out in the roadway. She then jumped in front of the moving vehicle causing the defendant to strike her after he tried to swerve to avoid hitting her. The defendant drove away, and did stop or report the accident to the police. He later confessed in a video tape statement that he accidentally struck the drunk driving victim. The defendant was convicted of manslaughter in the second degree and leaving the scene of an accident, upon a jury verdict, and the imposition of a sentence. The defendant was also charged with another count on the indictment with criminally negligent homicide, but the jury was unable to reach a verdict with respect to that count. The defendant appealed his conviction.
The Appellate Division considered the evidence adduced by the prosecution and the defendant. The prosecution presented evidence that was legally insufficient to find the defendant guilty of manslaughter in the second degree. The Penal Law (§ 125.15(1)) provides that a person who had been charged with manslaughter in the second degree must act recklessly to cause the death of another. The word reckless in the confines of the respective provision means that a person takes a substantial and unjustifiable risk by acting in a certain manner. The risk taken must be a gross deviation from the conduct of a reasonable person in the situation. The evidence adduced did not support a conviction for second-degree manslaughter in connection with the death of the intoxicated victim who jumped in front of the defendant’s car. Although the defendant was sure he hit passenger, he never looked back to see whether she was well, and did not report incident to police, the passenger’s death itself was result of accident and not of any reckless conduct on the defendant’s part. The charge was dismissed as the evidence was insufficient to charge the defendant. DWAI was in play.
The charge of criminally negligent homicide was also however, correct considering the circumstances of the accident. The Penal Law (§ 15.05(4)) states that a person is guilty of criminal negligence when he fails to perceive a substantial and unjustifiable risk that results in the death of a person. The distinction between second-degree manslaughter and criminally negligent homicide is not in nature of risk, but in the mental state required; a reckless offender perceives a risk but consciously disregards it, while a criminally negligent offender simply fails to perceive the risk. The insufficiency of the evidence to support the motorist’s conviction for second-degree manslaughter in connection with the death of passenger after the defendant let her out on roadway did not exclude finding that the motorist acted in criminally negligent manner in letting the passenger out on roadway, in drunken and distraught condition, and in failing to wait for a reasonable time before driving away. As a result a new trial was ordered on this count charging the defendant with criminally negligent homicide. DUI could have been charged.
The third count on the indictment charging the defendant with leaving the scene of the accident was valid based on the circumstances of the accident. But a new trial was ordered on the ground that the trial court committed an error by discharging two sworn jurors and replacing them with alternatives. The record did not justify the trial court’s decision to discharge two sworn jurors and replacing them with alternates. There was no indication that jurors were unable to continue serving by reason of illness or other incapacity or for any other reason caused them to be unable for continued service.
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