Opinion
November 10, 1986
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Callahan, J.P., Doerr, Boomer, Lawton and Schnepp, JJ.
Judgment modified on the law, and as modified affirmed, in accordance with the following memorandum: Defendant was convicted of one count of reckless endangerment in the first degree, in addition to three counts of robbery in the first degree. The People presented testimony of the victim that defendant turned on the gas jets on the kitchen stove, closed the windows of the house, and left a candle burning in a second floor bedroom with the victim bound and gagged in another bedroom. In our view, this evidence is insufficient to prove, beyond reasonable doubt, that defendant's conduct created a "grave risk of death" (Penal Law § 120.25). Although most people are familiar generally with the properties of natural gas, whether the actions of the defendant created a grave risk of death is not within the common understanding of the average layperson, and expert testimony was required to meet the People's burden of proof (see, People v Cronin, 60 N.Y.2d 430, 433; People v Kenny, 30 N.Y.2d 154). Consequently, defendant's conviction for reckless endangerment is reversed, that count of the indictment is dismissed, and sentence imposed thereon vacated.
We have examined defendant's remaining contentions and find them to be without merit.
All concur, except Callahan, J.P., who dissents and votes to affirm in the following memorandum.
I cannot concur with the majority that expert testimony was required to determine whether the actions of the defendant created a grave risk of death. The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court (Selkowitz v County of Nassau, 45 N.Y.2d 97). "It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness." (People v Cronin, 60 N.Y.2d 430, 433.) Expert testimony is not required to prove that defendant's conduct in turning on gas jets on the kitchen stove, closing all the windows of the house, lighting a candle and leaving the victim bound and gagged in his house, could create "a grave risk of death".