Opinion
December 9, 1993
Appeal from the County Court of Madison County (O'Brien, III, J.).
As a result of events that took place on April 4, 1991, defendant was indicted for manslaughter in the second degree, vehicular manslaughter in the second degree, criminally negligent homicide, two counts of driving while intoxicated as a misdemeanor, reckless driving and failure to keep right. Essentially defendant was accused of operating her car, while intoxicated, in a westerly direction on Hamilton Street in the Town of Hamilton, Madison County, and driving it into the eastbound lane of travel striking an oncoming bicycle and its rider causing said rider's death. Defendant was thereafter tried before a jury and convicted of manslaughter in the second degree, vehicular manslaughter in the second degree and failure to keep right. She was sentenced to concurrent terms of imprisonment of 5 to 15 years on the manslaughter conviction and 2 1/2 to 7 years' imprisonment on the vehicular manslaughter conviction. She was also given an unconditional discharge on the failure to keep right charge.
The parties agree that defendant received 2 1/2 to 7 years' imprisonment on the vehicular manslaughter conviction and not 3 1/2 to 7 years as recorded in the sentencing minutes.
There should be a reversal and the matter remitted for a new trial. We initially reject defendant's first argument that the testimony of the People's expert witness on accident reconstruction as to where the point of impact occurred on Hamilton Street was erroneously received into evidence because the expert could only fix the "possible" point of impact instead of the exact point of impact. We find no abuse of County Court's discretion in admitting the expert's testimony as to the impact as he demonstrated "a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability" (People v Brown, 67 N.Y.2d 555, 560, cert denied 479 U.S. 1093; People v Cronin, 60 N.Y.2d 430, 433).
There is merit, however, to defendant's next argument that County Court erred in denying her request that the crimes of manslaughter in the second degree (Penal Law § 125.15) (and its lesser included offenses) and vehicular manslaughter in the second degree (Penal Law § 125.12) (along with its lesser included offenses) be submitted to the jury in the alternative (see, CPL 300.40); accordingly, reversal of the convictions as to those charges is warranted (see, People v Gallagher, 69 N.Y.2d 525, 530). The two counts require different mental states (recklessness — a person is aware of and consciously disregards a substantial risk of death; criminal negligence — a person culpably fails to perceive the substantial and unjustifiable risk of death), so that "guilt of one necessarily negates guilt of the other" (supra, at 529; see, People v Eccleston, 161 A.D.2d 1184, 1185, lv denied 76 N.Y.2d 855; People v Osburn, 155 A.D.2d 926, 927, lv denied 75 N.Y.2d 816). Contrary to the People's assertion that the issue was not preserved for appellate review, defendant did timely request that the two crimes be charged alternatively during the precharge conference and again called it to the court's attention during the exceptions taken at the end of the charge (see, People v Lee, 102 A.D.2d 540, 541).
We do not find it necessary to comment on defendant's other assertions of error in view of our decision to reverse and order a new trial.
Yesawich Jr., Mercure and Casey, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Madison County for a new trial.