Summary
holding that the indictment must contain a factual statement "without allegations of an evidentiary nature"
Summary of this case from Nedd v. BradtOpinion
Argued February 15, 1978
Decided March 28, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ANTHONY F. ZAGAME, J., MARTIN RODELL, J.
Gary G. Mund and Walter Mund for appellant.
John J. Santucci, District Attorney (A. Brent Blacksburg of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. The testimony at trial clearly established that defendant was driving at an excessive rate of speed on a moderately traveled metropolitan street, while engaged in a "drag race" with another vehicle. Defendant's car smashed into and over the victim's vehicle which was stopped at a traffic signal, destroying that car and killing its driver. This evidence unquestionably established defendant's failure to perceive a substantial and unjustifiable risk, constituting a "gross deviation from the standard of care that a reasonable person would observe in the situation" (Penal Law, § 15.05; People v Haney, 30 N.Y.2d 328) and was, therefore, sufficient to sustain the conviction for criminally negligent homicide.
Defendant contends that reversible error resulted from the prosecution's inability to produce the vehicle for inspection. The Trial Judge carefully reviewed the reasons behind the failure to produce and found that the police, after notifying the owner of his right to claim the vehicle, to which there was no response, disposed of the vehicle in good faith and in full accordance with legal police procedure. We see no reason to disturb this determination. The defendant's challenge to the adequacy of the indictment (CPL 200.50, subd 7), as distinguished from the sufficiency of the evidence presented to the Grand Jury, was not timely raised and is thus not preserved for our review. We have considered defendant's other contentions and find them to be equally without merit.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.