People v Peryea
Annotate this CaseDecided on August 1, 2006
County Court, Clinton County
The People of the State of New York
against
Charles Peryea, Defendant.
33-I-2006
APPEARANCES:
DANA M. LOIACONO, Assistant District Attorney, for the People
RICHARD E. CANTWELL, Esq., Attorney for the Defendant
Kevin K. Ryan, J.
Pending before the Court is the defendant's motion to dismiss the indictment in this case. The Court has reviewed and considered the following: the defendant's notice of motion, filed June 28, 2006, attorney affirmation in support of motion, dated the same date, plus memorandum of law, and the People's affirmation in opposition, filed July 14, 2006.
The defendant seeks the following relief: an order dismissing the first count of the indictment, murder in the second degree, in violation of Penal Law §125.25(2), an order dismissing the second count, manslaughter in the second degree, in violation of Penal Law §125.15(1), an order dismissing all other counts of the indictment after the grand jury minutes are released to defense counsel.
After a review of the issues presented, the Court does not believe oral argument of this motion, as requested by defense counsel, is necessary.
Dismissal of Murder in the Second Degree and Manslaughter in the Second Degree
One of the most topical issues in New York criminal law is presented in the determination of this pre-trial motion, namely the distinction between the State's "depraved indifference" homicide statute (Murder in the second degree, Penal Law §125.25(2)) and the lesser felony of reckless manslaughter (Manslaughter in the second degree, Penal Law §125.15(1)). [*2]
The recent Court of Appeals decision of People v Suarez, 6 NY3d 202 (2005), has sought to add clarification of the analysis that courts must employ when presented with this issue. Suarez represents the latest in a stream of cases in a very short period of time dealing with alleged misapplications of the depraved indifference murder statute. It follows the recent cases of People v Payne, 3 NY3d 266 (2004), People v Gonzalez, 1 NY3d 464 (2004), People v Hafeez, 100 NY2d 253 (2003) and People v Sanchez, 98 NY2d 373 (2002). While all of these cases dealt with indictments charging defendants with both intentional murder and depraved indifference murder, a situation not present here, the collective review presented by these cases of the nature of depraved indifference murder as intended by the statute has hopefully proven instructive to this Court in conducting the analysis of the facts presented in this case.
The analysis results from the defendant's motion requesting that the Court review the grand jury minutes to determine if the evidence presented was legally sufficient to sustain an indictment for "depraved indifference" murder and Manslaughter in the second degree (CPL 210.20).
The People consented to an in camera review of the grand jury minutes. After review of same the defense motion for release of the minutes is DENIED. The grand jury was properly constituted and received all appropriate legal instructions.
Under the facts presented here, the distinction between the two types of homicides takes place in the context of a DWI fatality case. On the night of April 4, 2006, the defendant, Charles Peryea, was operating his motor vehicle in an eastbound direction on New York State Route 11 in the Town of Ellenburg when it crossed the center line into the westbound lane of traffic and collided with a westbound vehicle driven by Alicia Reynolds. As a result of the collision, a front seat passenger in the Reynolds vehicle, Brandon Dunlavey, was killed. The grand jury returned a seven-count indictment charging the defendant with Murder in the Second Degree (Penal Law §125.25(2)), Manslaughter in the second degree (Penal Law §125.15(1)), Vehicular Manslaughter in the second degree (Penal Law §125.12(1)), Criminally Negligent Homicide (Penal Law §125.10), two counts of misdemeanor Driving While Intoxicated (VTL 1192, subs. 2 and 3) and Failure to Keep Right (VTL 1120-a).
This Court believes the most appropriate starting point in any discussion of the issue of depraved indifference murder is set forth in Payne, wherein the Court stated that its "recent holdings... have made it clear that depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York" (People v Payne, 3 NY3d at 270). This view is clearly reiterated in Suarez wherein the Court stated that "depraved indifference murder properly applies to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder" (People v Suarez, 6 NY3d at 202).
Such language, coupled with the Court of Appeals' similar determinations in these recent cases that the actions of the various defendants did not rise to the level of depraved indifference murder is interpreted by this Court as the clear intent of the Court of Appeals to stop a trend of increasing willingness on the part of the People to charge under this "small", "finite" category.
This Court agrees with the Court of Appeals' pronouncements in this spate of cases for the simple reason that it is difficult to conceive of many actions resulting in an unintentional murder which should be classified at the same level as intentional murder. Yet this is precisely what occurs when an individual is convicted under the second subdivision of Murder the second degree (depraved indifference murder) since its level of seriousness is the same as the first subdivision [*3]of Murder in the second degree (intentional murder).
As stated in Payne,(p. 271), those rare instances when the criminal culpability of the defendant would rise to such a level could only occur when a defendant's conduct is
" so wanton, so deficient in a moral sense of concern, so devoid of regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another'"(People v Payne, 3 NY3d 266, 271 (2004), quoting People v Russell, 91 NY2d 280).
Applying the analysis set forth in these cases to the facts of this case leads this Court to conclude that the indictment for Murder in the second degree cannot be sustained. The fact that an individual is driving a vehicle while in an intoxicated condition and, as a result, causes the death of another, cannot, standing alone, sustain an indictment for depraved indifference murder since the crime of Vehicular Manslaughter addresses this circumstance. Something more, some aggravating circumstance or circumstances, is needed to raise the level of seriousness, first to the crime of manslaughter in the second degree and then to the crime of murder in the second degree.
While there is certainly no definitive list of aggravating factors in a driving while intoxicated fatality which would support the increased criminal liability, certain factors come readily to mind, factors which have been present in those cases which have sustained either the initial charge of murder in the second degree after the court reviewed the grand jury minutes or a jury finding after trial. Two such factors are the level of intoxication and the speed of the vehicle.
In People v Hopkins, 6 Misc 2d 1008(A), 2004 NY Slip Op. 51748(U) (2004), the court after reviewing the grand jury minutes, found sufficient evidence had been presented to prove a prima facie case for depraved indifference murder when the defendant's car was traveling at a rate of 104 miles per hour on a wet road in a 30 miles per hour zone seconds before he slammed into the rear of the victim's car which was stopped at a red light and that the speed at the time of impact was 65 to 70 miles per hour.
In People v Padula, 197 AD2d 747 (3rd Dept. 1993), the intoxicated defendant drove his "high-powered sports car" between 70 and 80 miles per hour in a 30 miles per hour zone on a "high volume" street during evening rush hour after failing to heed the request of his passenger to stop. He furthermore disregarded traffic devices and collided with a vehicle in an intersection. He was not apprehended until later that day and his blood alcohol content at that time was between 0.08% and 0.12%.
In People v Hoffman, 283 AD2d 928 (4th Dept. 2001), the defendant, who had been drinking, struck another vehicle from the rear. While the police were investigating this accident, he took a second set of keys and drove off, leading the police on a high speed chase at speeds of up to 80 miles per hour, passing cars on the right and disobeying traffic signals. He ignored the pleas of his passenger to stop and drove down an off ramp, colliding with another vehicle and killing a passenger in that vehicle. His blood alcohol content was 0.22%.
In People v Daniels, 265 AD2d 909 (4th Dept. 1999), the defendant, after drinking through the early morning hours, drove four other individuals, including an 11 year old girl, in an erratic manner and at high rates of speed, prompting several bystanders to call the police. The defendant's vehicle sped through a red light and then, when chased by a trooper, reached speeds of 110 miles per hour during morning rush hour. He passed vehicles on the right and forced at [*4]least one other vehicle off the road. His blood alcohol content was 0.18%.
In People v Moquin, 142 AD2d 347 [subsequent history omitted] (3rd Dept. 1988), the defendant who had at least two prior alcohol-related offences and who was driving with a blood alcohol content of 0.24% at a speed estimated to be 70 miles per hour. Her vehicle moved to the opposite lane of traffic and remained there until the impact with an oncoming car. Earlier, she had been observed driving erratically with respect to speed by alternately slowing down and speeding up.
In the instant case, the evidence presented to the grand jury in support of a depraved indifference murder indictment consisted of the following elements:
1.the speed of the defendant's vehicle was 61 miles per hour in a 55 miles per hour zone;
2.the defendant's blood alcohol content was .12%;
3.shortly before the accident, the defendant's vehicle veered in the oncoming lane and he did not in any way attempt to brake;
4.on September 15, 2005, approximately a year and a half prior to the collision, the defendant had attended a Victim Impact Panel where speakers talk about how drinking and driving has changed their lives forever, such as by the injury or death of a loved one.
At the outset, it must be stated that the presence of any of the driving elements set forth above is very troubling to the Court. The Court is, of course, mindful of the incalculable loss that has occurred to the family and friends of the young victim. However, the question, as previously framed, is whether the factors presented are sufficient to raise the level of the criminal offense to manslaughter in the second degree or murder in the second degree.
The Court first rules that these factors, and the evidence presented to the grand jury, are sufficient to support a finding that the defendant, by his conduct, recklessly caused the death of another, as defined in the charge of manslaughter in the second degree. The evidence presented to the grand jury was sufficient for the jury to find that the defendant's actions created a substantial and unjustified risk that another person's death would occur. Consequently, the defendant's motion to dismiss the second count of the indictment is DENIED.
Relative to the depraved indifference murder charge, the Court finds that the defendant's alleged actions, tragic and condemnable as they may be, were not such that would elevate his actions to a level criminal liability equal to that of intentional murder, particularly in light of the Court of Appeals' recent instructions on this topic as to the degree and type of proof needed to support a finding relative to actions that create a grave risk of death, and also after a comparison of the factual elements that have been present in driving while intoxicated fatalities in which a murder in the second degree charge or conviction has been sustained.
Accordingly, the defendant's motion with respect to the first count of the indictment charging the defendant with murder in the second degree is GRANTED and the count is hereby DISMISSED.
Dismissal of the Remaining Counts
The defendant argues that the balance of the indictment ought to be dismissed since the People introduced evidence of the defendant's prior driving history, which includes a conviction for driving while ability impaired as a traffic infraction. While the actual conviction was not entered [*5]into evidence, its existence was made known to the grand jury. However, it does not follow that the indictment must be dismissed as result. The grand jury received appropriate limiting instructions regarding the reference to the defendant's prior driving record.
In addition, "Recklessness if an element of manslaughter in the second degree (Penal Law §125.15[1]) and requires a conscious awareness of a known risk (Penal Law §15.05[3])" (People v Kenny, 175 AD2d 404, 406 (3rd Dept. 1991) appeal denied 78 NY2d 1012 (1991)). The evidence of the defendant's prior DWAI conviction related to the required attendance at the Victim Impact Panel and proof that the defendant had in fact attended same. This evidence was probative of the issue of recklessness and was properly admitted to the grand jury (Ibid.).
Thus, the defendant's motion to dismiss counts three through seven of the indictment is DENIED.
IT IS ALL SO ORDERED.
E N T E R:
KEVIN K. RYAN
County Court Judge
Dated:Plattsburgh, New York
August, 2006
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