People v Bell
Annotate this CaseDecided on March 9, 2006
Monroe County Court
The People of the State of New York,
against
Kevin Bell, Defendant.
0610/05
Alex R. Renzi, J.
Facts
On July 19, 2002, the defendant was involved in a motor vehicle accident in the Town of Sweden, Monroe County, which resulted in the death of his passenger Matt Trouskie. Monroe County Sheriff's Deputies charged the defendant with various vehicle and traffic offenses, including Driving While Intoxicated (VTL 1192, subd. 2 and 3), Aggravated Unlicensed Operation in the Third Degree, Unlicensed Operation, Failure to Stop at a Stop Sign, and Failure to Maintain Lane. All the aforementioned charges constituted misdemeanors or violations; no felony criminal charges were filed in connection with the death of Matt Trouskie.
On or about November 13, 2003 the defendant was convicted by jury trial in Sweden Town Court of the misdemeanor DWI offenses, and the Aggravated Unlicensed Operation ticket. Town Justice Cody, at the same time, convicted the defendant of the remaining vehicle and traffic infractions.
The defendant appealed the convictions. By order of the Monroe County Court (Schwartz, J.) on March 21, 2005, the defendant's convictions were reversed on the ground that the trial court had committed reversible error relating to an aspect of jury selection. The People conceded the error, and the matter was returned to Sweden Town Court for a new trial.
On August 23, 2005, the Monroe County Grand Jury returned an indictment against the defendant in connection with the July 19, 2002 death of Matt Trouskie. The defendant was charged in the indictment with Manslaughter in the Second Degree [PL § 125.15 (1)], Vehicular Manslaughter in the First Degree [PL § 125.13] and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree [VT § 511-3-a-1].
As a result of the subsequent indictment, the defendant sought a writ of error coram nobis
from Judge Schwartz seeking to reinstate the defendant's misdemeanor and violation verdicts from Sweden Court. In sum and substance, the defendant argued that it was ineffective assistance of counsel for him to seek an appeal to reverse the trial verdict if the result of a successful appeal would have been possible indictment on the more serious charges relating to Matt Trouskie's death.
On January 9, 2006, Judge Schwartz, Monroe County Court, granted the defendant's coram nobis application, vacated the prior judgement, and reinstated the convictions.
The defendant now moves this Court, among other things, to dismiss the instant indictment on the grounds that the charges brought by the grand jury were the fruit of a "vindictive prosecution" by the district attorneys office, as well as upon the grounds that prosecution is barred on state and [*2]federal constitutional grounds, and pursuant to CPL § 40.00.
Discussion
At the outset, it should be noted that the People concede, in their responding papers of January 25, 2006, that the prosecution of counts two and three of the indictment, charging Vehicular Manslaughter and Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree, are barred based upon the reinstatement of the conviction by Judge Schwartz upon the defendant's coram nobis application, as well as based upon the authority set forth in Blockburger v. United States, 284 U.S. 299 (1932). (Peo. affirm. 01/25/06, at p. 16, 18).
Accordingly, counts two and three of indictment 0610/05 are hereby dismissed.
The issue then before this Court is whether the prosecution of count one of the indictment, charging reckless Manslaughter in the Second Degree, is subject to dismissal based upon a claim of "vindictive prosecution", state and/or federal constitutional grounds, and/or, based upon statutory double jeopardy grounds.
The relevant portion of count one of the indictment charges as follows:The defendant, on or about July 19, 2002, in the County of Monroe, State of New York, recklessly caused the death of another person, Matt E. Trouskie, by operating a motor vehicle at a high rate of speed while in an intoxicated condition, causing said vehicle to leave the roadway and strike a tree, thereby causing Mr. Trouskie's death.
Penal Law Section 125.15 (1) (Manslaughter in the Second Degree) provides that a person is guilty of that charge "when he recklessly causes the death of another person". For the People to convict a defendant of this offense, the essential element which must be proven is that the defendant "recklessly caused the death" of another. Specific conduct must be alleged and proven for a defendant to be convicted.
In the instant case, the factual portion of the indictment lays out the manner in which the People intend to prove the defendant's reckless conduct. Namely, that he drove his car at a high speed while in an intoxicated condition. Thus, for this defendant to be convicted of count one of the indictment, the People would need to prove the defendant drove in an intoxicated condition, was speeding, and that as a result of that conduct he caused the death of Matt Trouskie.
Addressing first the defendant's claim that the instant indictment constitutes a "vindictive prosecution" and thus seeks dismissal of the indictment for those reasons, the Court denies that portion of the defendant's motion. While the timing of this indictment, when coupled with the defendant's successful appeal of the local court conviction, raises an inference that the prosecution may have been motivated for vindictive reasons, these factors alone do not create a presumption of vindictiveness. Moreover, the defendant has failed to present any direct evidence (e.g. statements by a prosecutor evincing a vindictive motive) that the district attorney's office, in fact, prosecuted the defendant for vindictive reasons. Therefore, for those reasons, this portion of the defendant's motion must fail. See United States v. Koh, 199 F3d 632, 639-640 (2d Cir. 1999).
In addressing the defendant's claim that prosecution is statutorily barred on double jeopardy grounds, the Court must look to Article 40 of the Criminal Procedure Law. Criminal Procedure Law §40.20 (1) provides that "[a] person may not be twice prosecuted for the same offense" and that, under §40.20 (2) "[a] person may not be separately prosecuted for two offenses based upon the same [*3]act or criminal transaction."
CPL § 40.10(2) defines "criminal transaction" as conduct
. . . which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.
The defendant contends that the traffic offenses for which the defendant was previously tried and convicted, and the present indictment, involve acts "so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident." (Def. mot, 1/11/06, at p. 24). The defendant submits that dismissal of the indictment is warranted pursuant to CPL §§ 40.20(1) and 40.40(1).
The People, on the other hand, oppose the defendant's application of the above provisions, based on the argument that the crimes of DWI and Manslaughter in the Second Degree each contain an element not contained in the other offense, and that each offense is "designed to prevent very different kinds of harm or evil" [CPL §40.20(2)(b)]. Moreover, the People state that the prosecution on the present indictment is not barred pursuant to CPL §40.40(2) based upon the discovery of "legally sufficient evidence" which they claim did not exist at the time of the defendant's original convictions in local court in November, 2003.
It should be noted that the People do not dispute that the defendant's DWI conviction and the instant indictment involve incidents arising from the same "criminal transaction" as that term is defined in CPL article 40 (Peo. affirm. 01/25/06, at p. 18). Moreover, the People concede that the misdemeanor and traffic infractions for which the defendant was convicted in local court, and the charges contained in this indictment, are "joinable" offenses under CPL §200.20(2)(a). (Peo. affirm. 01/25/06, at p. 19).
It is the claim of recently discovered "legally sufficient evidence", as set forth in the People's affirmation of January 25, 2006, which is of primary concern to this Court. Do the attachments in the People's affirmation, consisting of a Monroe County Sheriff's inspection report, and the affidavits of three assistant district attorneys, contain facts and evidence that was not available (or, with minimal investigation, not readily discoverable) at the time of the defendant's prosecution in town court?
The People allege that a homicide prosecution was not initially brought against the defendant because information, known to them at the time, was that the defendant operated a car with inadequate brakes. Based on this factor, "reckless" conduct could not be shown that excessive speed and intoxication caused the victim's death; rather, the inadequate breaks were the intervening cause of the accident and death.
For the reasons set forth below, the Court finds that the information within the People's affirmation constituted matters that were in fact available to the People or, with minimal investigation, were readily discoverable, at the time the defendant was prosecuted, tried and convicted in Sweden Town Court in 2002-03.
From the time of the fatal accident in July, 2002 the Monroe County Sheriff's Department [*4]and the Monroe County District Attorneys office were the lead investigative agencies into Trouskie's death, and into the defendant's prosecution for traffic tickets arising from that accident. Uniform traffic tickets were issued on the date of the accident by sheriff's deputies, which charged DWI (common law and breath test), Aggravated Unlicensed Operation, No Operators License, and the moving violations of failure to stop at a stop sign, and failure to maintain lane.
Of significance, however, are the depositions provided by witnesses to sheriffs deputies on July 19, 2002. Richard Moore's deposition notes observing a red car (presumably the defendant's) stopped at an intersection; later seeing the car stopped on the road in Moore's lane; twice observing the red car drive at a "fast speed" and, at one point, noting that it "flew past" him; and seeing the red car operating "all over the road" from "shoulder to shoulder".
Dennis Smalley noted seeing a red and silver car "racing" on White Road. He stated he heard a car going "really fast". Gary Thompson's deposition stated that he observed the red car stopped in the road, and recognized Matt Trouskie getting into the passenger seat.
These depositions were attached as exhibits in an attorney's affidavit filed on behalf of the defendant on February 10, 2005, and thus have been made part of the record in this case. The People have not disputed the existence of these statements, nor have they indicated that they were unaware of their existence during the time the defendant was being prosecuted in local court in 2002-03. At least two of the depositions show that, at a point in time immediately prior to the accident, the defendant's car was capable of stopping.
In regards to the Monroe County Sheriff's Department vehicle inspection report attached to the People's affirmation of January 25, 2006, that report, even on a cursory review, contains some evidence that the defendant's car had adequate breaks. Taken together with the aforementioned witness' statements, it can be concluded that the district attorney's office had available, shortly after the accident, and certainly during the two year period of time that the defendant was being prosecuted in local court, evidence that speed and intoxication were the contributing "reckless" factors leading to the victim's death, and that the brakes on the car were not, in fact, "inadequate". The attachments in the People's affirmation make note of the accident reconstruction by Officer John Northrup. Northrup's report apparently concluded that the brakes on the defendant's car were adequate. However, neither the affirmation nor the attached affidavits note when Northrup conducted that investigation. Northrup's report is not attached. The People do not apparently claim that Northrup withheld that report from the district attorney's office.
Decision and Order
Therefore, the Court concludes, based on the record before it, and for the reasons set forth above, that the prosecution of the defendant for Manslaughter in the Second Degree is barred as violative of CPL §40.40.
Accordingly, Count One of indictment 0610/05 is hereby dismissed. Counts Two and Three, as previously discussed, are likewise dismissed.
This opinion constitutes the decision and order of this Court. [*5]
______________________________
Hon. Alex R. Renzi
Monroe County Court Judge
Dated:March 9, 2006
Rochester, New York
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