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Defendant Contends Evidence was Illegally Obtained

A New York Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the County Court, Nassau County, rendered September 16, 2008, convicting him of murder in the second degree, vehicular manslaughter in the first degree, aggravated driving while intoxicated (DWI), operating a motor vehicle while under the influence of alcohol, criminal possession of a weapon in the second degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

A New York Criminal Lawyer said that, at around midnight on October 18 to 19, 2007, the defendant went to the Island Rock nightclub in Hempstead with his girlfriend, a friend of his girlfriend, and another individual. After drinking alcohol at the nightclub, the defendant and the other individual left and went to a nearby parking lot. The friend of the defendant’s girlfriend testified that the defendant did not appear intoxicated at that time. According to him, the defendant stated in the parking lot “I lost my shit,” presumably referring to drugs, and the defendant became upset. The defendant went into the trunk of his car and searched for something. The defendant then began arguing with his girlfriend. At approximately 3:15 A.M., several witnesses heard gunshots, but no one reported having seen the defendant fire a gun. The defendant then angrily ordered said friend to leave with his girlfriend, which he did, driving the defendant’s girlfriend home. The defendant and the other individual then entered the defendant’s vehicle, with the defendant driving. When police officers arrived at the parking lot only minutes later, at about 3:20 A.M., the defendant had left, and the officers recovered several 9-millimeter shell casings in the parking lot.

A Queens Criminal Lawyer said that, thereafter, at approximately 3:30 A.M., the defendant’s vehicle was seen traveling west in the eastbound lanes of the Southern State Parkway at a speed of 70 to 75 miles per hour. According to numerous witnesses, the defendant’s vehicle traveled in the wrong direction from about exit 19 to exit 13, a distance of approximately five miles. A witness observed the defendant driving directly at him while changing lanes. That witness had to immediately pull his vehicle onto the shoulder to avoid a collision. This witness saw that the defendant continued driving the wrong way, and the witness observed the other vehicles on the parkway “split apart” in order to get away from the defendant. The witness testified that the defendant “was steadily going, not braking, nothing. He was just going. He was speeding.”

A Long Island Criminal Lawyer said that meanwhile, another witness, Police Sergeant was also driving in the proper direction in the left eastbound lane of the parkway. As the Sergeant passed exit 14, he observed the defendant’s vehicle driving towards him “at a very, very high rate of speed,” which caused the Sergeant to “violently” turn his steering wheel to the right to avoid a collision. The defendant’s car came within inches of Sergeant Schulze’s vehicle. According to the Sergeant, the defendant “made absolutely no effort to get out of the way.”

Near exit 13, the defendant’s vehicle, without ever having slowed down, collided with the victim’s vehicle, killing the victim instantly and incinerating the victim’s vehicle. When emergency services and police arrived on the scene and attempted to remove the defendant from his damaged vehicle, the defendant was agitated and his breath emitted a strong odor of alcohol. Following the defendant’s arrest, a blood sample taken from him at 4:49 A.M., just over an hour after the accident, indicated that his blood alcohol content (hereinafter BAC) was 0.19%.

A Nassau Assault Lawyer said that, after the defendant was removed from his vehicle, the police began conducting an inventory search of the vehicle. The discovery of several 9-millimeter rounds in the trunk, however, transformed the search from inventory to investigatory, during which the police recovered a 9-millimeter semiautomatic pistol, what was later determined to be .395 grams of cocaine beneath the front passenger seat, and 41 rounds of 9-millimeter bullets contained in a partially loaded magazine and a box in the trunk. The gun recovered from the defendant’s vehicle matched the shell casings found in the parking lot near the nightclub.

The issue in this case is whether the evidence against the defendant should be suppresses on the ground that it was illegally obtained.

The defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree and criminal possession of a weapon in the second degree is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s guilt of those crimes beyond a reasonable doubt. A person is guilty of depraved indifference murder when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”.

We disagree with our dissenting colleague’s view that there was no evidence that the defendant deliberately and purposefully proceeded the wrong way down the parkway, in recognition of the grave risk to human life, and with utter disregard for the consequences. Rather, viewing the evidence in the light most favorable to the prosecution, as we must, the testimony of the witnesses who observed the defendant speeding directly at them on the parkway, causing those witnesses to swerve in order to avoid a collision, demonstrates that the defendant’s mental state was one of depraved indifference to human life.

The defendant asserts that his BAC content and intoxication rendered him unable to form the mental state of depraved indifference to human life. To the contrary, the evidence demonstrated that the defendant helped the individual leave the nightclub. In addition, the friend testified that when the defendant left the nightclub, the defendant “looked okay to him,” “didn’t look like intoxicated to me,” and that the defendant “seemed like he could handle himself.” The evidence did not establish that the defendant was too intoxicated to form the culpable mental state necessary to prove depraved indifference intoxicated motorist traveling the wrong way on a parkway, stating that the evidence “did not establish that the defendant was intoxicated to a degree of total oblivion or mania” so as to preclude the defendant from forming the requisite mental state. Thus, the record supports a view of the evidence that the defendant was coherent and able to form the requisite mens rea prior to leaving the parking lot.

Here, the evidence adduced at trial distinguishes this case from the cases relied upon by the defendant. Here, by contrast, the record does not suggest that the subject accident was the result of the defendant’s attempt to flee from the police, and there was factual proof that the defendant had several opportunities to cease his procession towards oncoming traffic.

We do not believe that the case stand for the proposition that a defendant who is per se intoxicated, and drives into oncoming traffic resulting in a fatality, can never be found guilty of depraved indifference murder or assault because such a defendant is incapable of forming the requisite mens rea of depraved indifference to human life. Rather than supporting the defendant’s position, the above-cited cases merely illustrate that, in situations where a defendant is alleged to have acted with depraved indifference to human life while operating a motor vehicle, the nature of the evidence presented is crucial. We agree that when presented with a proper factual predicate, a defendant can be found not guilty of depraved indifference murder as a matter of law. However, we part with the dissent in that we disagree that the facts in this case mandate an acquittal as a matter of law. The facts as articulated above support the defendant’s conviction of murder in the second degree. Therefore, these cases are all fact determinative. We also note that the state of the law in this area has yet to be fully developed.

Our dissenting colleague correctly notes that, in 2007, the Legislature created the new crime of aggravated vehicular homicide, a class B felony. We agree that the new crime-which was not in effect at the time of the incident sub judice-was intended to address drunk drivers who kill, but act with a mental state that does not rise to the level of depraved indifference to human life. We also acknowledge that it is unusual for one to be guilty of depraved indifference murder when driving while intoxicated because of the decisions of the Court of Appeals, previously cited, that limited its application. We also agree with our dissenting colleague that the new crime was not needed to rectify a purported legal impossibility of a drunk driver being convicted of depraved indifference murder. A review of the legislative bill jacket supports this view.

The dissent posits that in order to convict the defendant of depraved indifference murder, the jury would have had to have found that the defendant was suicidal. This assertion is flawed because it is not necessary for the defendant to have intended to kill himself when he drove the wrong way down the parkway. Indeed, to find the defendant guilty of depraved indifference murder, a rational trier of fact would not need to find that the defendant had a specific, conscious intent to cause a certain result.

Under the facts presented here, the defendant’s action of driving his vehicle towards oncoming traffic on the parkway for approximately five miles constituted reckless conduct which carried with it a grave risk of death and evinced a depraved state of mind. The negation of this intent, by extreme intoxication, is not supported by the record. For example, the defendant helped Taylor into the car, he searched for his missing drugs, and the friend testified that the defendant did not appear intoxicated. Thus, we cannot conclude that the evidence of the defendant’s guilt of murder in the second degree was legally insufficient to support that conviction. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to depraved indifference murder was not against the weight of the evidence.

Likewise, we find that the evidence was legally sufficient to establish the defendant’s guilt of criminal possession of a weapon in the second degree, and that the verdict of guilt as to that crime was not against the weight of evidence.

Contrary to the defendant’s contention, the hearing court properly denied that branch of his omnibus motion which was to suppress the physical evidence seized from his vehicle. The evidence adduced at the suppression hearing demonstrated that the search of the defendant’s vehicle was authorized as a warrantless search falling within the automobile and emergency exceptions to the warrant requirement.

of the effective assistance of counsel, as defense counsel provided meaningful representation. The sentence imposed was not excessive.

Accordingly, the court held that the judgment is affirmed.

If you are facing murder charges which is classified as a B felony, seek the immediate assistance of a Nassau Criminal Attorney and Nassau Assault Attorney at Stephen BIlkis and Associates in order to defend your case. Otherwise, if convicted you will be in jail for a long period of time.

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