Published on:

Defendant Moves to Supress Evidence in Vehicular Manslaughter Case


The Facts of the Case:

On around 18 to 19 of October 2007, at around midnight, the defendant went to a nightclub with his girlfriend “A”, a friend of his girlfriend “B”, and another individual “C”. A New York Criminal Lawyer said after drinking alcohol at the nightclub, the defendant and “C” left and went to a nearby parking lot. According to “B”, defendant did not appear intoxicated at that time; that defendant stated in the parking lot that he lost his shit, presumably referring to drugs, and the defendant became upset. The defendant then went into the trunk of his car and searched for something. Thereafter, the defendant 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 B to leave with his girlfriend. B did and drove the defendant’s girlfriend home. The defendant and C 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. 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. According to a witness, the defendant was driving directly at him while changing lanes; that he had to immediately pull his vehicle onto the shoulder to avoid a collision; that the defendant continued driving the wrong way; that he observed the other vehicles on the parkway split apart in order to get away from the defendant; that the defendant was steadily going, not braking.

Another witness, a Police Sergeant, was also driving in the proper direction in the left eastbound lane of the parkway. According to the Sergeant, as he passed exit 14, he observed the defendant’s vehicle driving towards him at a high rate of speed which caused him to violently turn his steering wheel to the right to avoid a collision; that the defendant’s car came within inches of the Sergeant’s vehicle; that 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. The police then arrested defendant, and following his 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%. When the defendant was arrested, he was then removed from his vehicle, and the police thereafter 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.

On 16 September 2008, the defendant was found guilty and was convicted of murder in the second degree (depraved indifference), vehicular manslaughter in the first degree, aggravated driving while intoxicated or aggravated 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, a drug crime. The defendant then appeals from the said criminal convictions. 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.

The Ruling of the Court:

First, the court finds that there is nothing from which a jury could reasonably infer that the defendant possessed the mens rea necessary for murder in the second degree or depraved indifference: a tragic combination of both awareness and total disregard for the fact that he was driving at high speed the wrong way down the parkway, which was conduct that placed both the defendant and others traveling eastbound on the parkway at grave risk of death. In effect, to convict the defendant of depraved indifference murder, the jury would have to find that the defendant was suicidal. There is no basis for such a finding. Rather, the evidence indicates that the defendant was highly intoxicated and upset with his girlfriend and/or with having lost something in the parking lot near the nightclub.

Moreover, a Westchester County DWI Lawyer said that even accepting the contention that the defendant’s intoxication did not render him incapable of forming the requisite mens rea of depraved indifference, there is nevertheless legally insufficient evidence that the defendant actually possessed such mens rea. Without minimizing the defendant’s conduct or the tragic results, the court finds that absent from the evidence adduced at trial is evidence, for example, that the defendant intentionally drove in the wrong direction on the parkway at a high rate of speed or continued on his path once he realized he was driving in the wrong direction on the parkway, conduct which could demonstrate an utter disregard for the value of human life. Instead, the evidence demonstrated that the defendant, by reason of his severe intoxication, acted recklessly by failing to perceive that he was driving the wrong way on the parkway. Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been. Circumstances evincing a depraved indifference to human life are not established by recklessness coupled only with actions that carry even an inevitable risk of death. Put differently, in general, a defendant who possesses the mens rea of depraved indifference intends to commit the act that results in the death or injury of another person, but is depravedly indifferent to the grave risk of death or injury to others as a consequence of his or her conduct, i.e., intentionally opening the lion’s cage at the zoo; placing a time bomb in a public place; poisoning a well from which people are accustomed to draw water; opening a drawbridge as a train is about to pass over it and dropping stones from an overpass onto a busy highway. In other words, focus on the three statutory factors that distinguish depraved indifference murder, like circumstances evincing a depraved indifference to human life, recklessness and a grave risk of death to another person, should make clear that the statute properly applies only to the unusual case. In sum, there is no valid line of reasoning that could support the jury’s conclusion that the defendant possessed the mental culpability required for depraved indifference murder.

Second, the conviction on the count of the murder in the second degree or depraved indifference is against the weight of the evidence. While the court has a responsibility to conduct an independent review of the weight of the evidence, the court must nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor. A medical expert was called to testify on the blood alcohol content of .19%, as a result of the test administered an hour after the defendant’s arrest, which would negatively affect an individual’s cognitive abilities, meaning, the thought process, the ability to think clearly and respond to questions; the person’s psychomotor functions, such as moving muscles and responding to various stimuli, would be negatively affected; the ability to perceive objects in the environment would be negatively affected; and then the ability to respond to those objects would be negatively affected. The expert testified that an intoxicated person’s ability to do “divided attention tasks”, such as driving, is most affected by alcohol. Thus, while driving requires equal attention to steering, acceleration, braking, direction signals, and responding to objects in the environment, an intoxicated person may devote all of his or her attention to only one or two of those tasks. Further, an officer who arrived at the scene moments after the crash described the inside of the defendant’s car as having an extremely strong odor of alcohol. After the defendant was removed from his vehicle and placed under arrest for driving while intoxicated, the officer described the smell of alcohol coming directly from the defendant. Nonetheless, the People presented no evidence that the defendant intentionally entered the parkway in the wrong direction and/or continued to drive the wrong way after realizing that he was driving against traffic. Indeed, one witness, an off-duty sergeant for the New York City Police Department, testified that he swerved out of his lane to avoid being hit by the defendant’s vehicle, and described the defendant’s vehicle as staying in the lane closest to the barrier and not reacting to the sergeant’s car as it swerved out of the path of the defendant’s vehicle. Such eyewitness testimony is consistent with that of the People’s expert, who explained that intoxicated persons experience tunnel vision and lack the ability to concentrate on the numerous tasks required to drive. However, while the People presented the testimony of numerous witnesses who saw the defendant’s vehicle traveling in the wrong direction on the parkway, none of those witnesses’ testimony established that the defendant understood that he was traveling in the wrong direction. While some witnesses attempted to warn the defendant of his mistake by honking their horns, there is no evidence that the defendant heard those warnings or understood that the warnings were intended for him. Nor did the People’s collision reconstruction expert provide any testimony indicating that the defendant may have intentionally driven the wrong way down the parkway. In sum, no credible evidence demonstrated that the defendant deliberately drove his vehicle the wrong way with an utter disregard for the value of human life, and thus acted with depraved indifference. In sum, the weight of the evidence does not support a finding that the defendant, acting with depraved indifference, an utter disregard for the value of human life, knowingly drove the wrong way down the parkway. The defendant may have been the instrument of death but there is no evidence that he knowingly acted with utter disregard for the grave risk of death or serious injury he was creating. Rather, the evidence established that the defendant acted recklessly in driving while intoxicated severely, which led to the tragic death of an innocent person. In other words, the People’s evidence established that the defendant acted recklessly, but not that he acted with depraved indifference.

Accordingly, the judgment must be modified, the defendant’s conviction of second degree murder must be reduced to manslaughter in the second degree, a lesser-included offense of murder in the second degree, vacate the sentence imposed on that count, and remit the matter to the County Court for resentencing on that count.

The best Bronx County Criminal Defense Attorneys at Stephen Bilkis & Associates are at your service. For experienced representation, get in touch with us and increase your chances of having judgments, orders, or resolutions ruled in your favor whether you have been charged with sex crimes, drug possession or theft. Our Bronx County DWI Defense Lawyers are highly competent and exceptionally skilled in the field of criminal litigation.

Contact Information