Opinion
616 KA 18-00336
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Timothy WISNIEWSKI, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the mandatory surcharge imposed under counts two and three of the indictment to $175 with a crime victim assistance fee of $25, vacating that part of the sentence revoking defendant's driver's license for one year, and vacating the fine, and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminally negligent homicide ( Penal Law § 125.10 ) and two counts of operating a vessel while under the influence of alcohol or drugs ( Navigation Law § 49-a [2] [a], [d] ). This case arises from an incident in which a 16-year-old girl died after she struck her head on a bridge while riding as a passenger in a motor boat passing underneath it. The evidence presented at defendant's trial established that defendant owned the boat and, just prior to the incident, had allowed his 17-year-old codefendant to pilot it, with defendant and the victim as passengers. The codefendant had spent the previous night at defendant's home, among other things, drinking alcohol, and both defendant and the codefendant were intoxicated at the time the victim struck her head on the morning in question. The evidence further established that, once defendant allowed the codefendant to take control of the boat, he began piloting the boat in a dangerous manner and well above the speed limit for the creek on which it traveled. Witnesses described the boat's excessive speed and how it swerved from one side of the creek to the other just before the accident occurred.
Although defendant contends on appeal that the conviction of criminally negligent homicide is not supported by legally sufficient evidence for multiple reasons, defendant's contention is preserved for our review only with respect to the issue of defendant's accessorial liability (see People v. Ange , 37 A.D.3d 1143, 1144, 829 N.Y.S.2d 378 [4th Dept. 2007], lv denied 9 N.Y.3d 839, 840 N.Y.S.2d 766, 872 N.E.2d 879 [2007] ). Contrary to defendant's contention with respect to that issue, " ‘there is a[ ] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial’ " ( People v. Cahill , 2 N.Y.3d 14, 57, 777 N.Y.S.2d 332, 809 N.E.2d 561 [2003] ). Specifically, the evidence is legally sufficient to establish that defendant "importune[d]" or "intentionally aid[ed]" the codefendant in his commission of the offense while defendant himself acted "with the mental culpability required for the commission thereof" ( Penal Law § 20.00 ; see generally People v. Kaplan , 76 N.Y.2d 140, 145, 556 N.Y.S.2d 976, 556 N.E.2d 415 [1990] ; People v. Flayhart , 72 N.Y.2d 737, 741, 536 N.Y.S.2d 727, 533 N.E.2d 657 [1988] ; People v. Abbott , 84 A.D.2d 11, 14-15, 445 N.Y.S.2d 344 [4th Dept. 1981] ). In addition, viewing the evidence in light of the elements of the crime of criminally negligent homicide as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict with respect to that crime is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Contrary to defendant's further contention, County Court did not abuse its discretion in allowing the People to elicit expert testimony from an accident reconstructionist regarding the stance typically taken by motor boat passengers in order to keep their balance in a moving watercraft. That testimony was "helpful in aiding a lay jury reach a verdict" ( People v. Brown , 97 N.Y.2d 500, 505, 743 N.Y.S.2d 374, 769 N.E.2d 1266 [2002] ). Defendant further contends that the court erred in allowing the codefendant to testify on redirect examination by the People that there had been prior occasions in which the codefendant purchased marihuana from defendant's son while defendant was present. By objecting solely on the ground that the testimony lacked relevance, defendant failed to preserve his contention that such testimony should have been precluded under People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901] (see generally People v. Garcia-Santiago , 60 A.D.3d 1383, 1383, 876 N.Y.S.2d 263 [4th Dept. 2009], lv denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 [2009] ). In any event, defendant opened the door to that testimony by eliciting testimony on cross-examination regarding those marihuana purchases (see generally People v. Stoutenger , 121 A.D.3d 1496, 1497, 993 N.Y.S.2d 814 [4th Dept. 2014], lv denied 25 N.Y.3d 1077, 34 N.E.3d 380 [2015] ) and, contrary to defendant's contention, the testimony in question was relevant to establish why the codefendant was at defendant's home on the evening before the victim's death, to establish the nature of the relationship between defendant and the codefendant, and to complete the narrative of events leading up to the victim's death (see generally People v. Ray , 63 A.D.3d 1705, 1706, 880 N.Y.S.2d 837 [4th Dept. 2009], lv denied 13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969 [2009] ).
By failing to object to certain remarks made by the prosecutor during summation, defendant failed to preserve his further contention that he was deprived of a fair trial by prosecutorial misconduct on summation (see People v. Mahoney , 175 A.D.3d 1034, 1035, 108 N.Y.S.3d 104 [4th Dept. 2019], lv denied 35 N.Y.3d 943, 147 N.E.3d 563 [2020] ). By failing to request different jury instructions or object to the charge as given, defendant likewise failed to preserve his challenge to the jury instructions given by the court (see People v. Washington , 173 A.D.3d 1644, 1645, 102 N.Y.S.3d 823 [4th Dept. 2019], lv denied 34 N.Y.3d 985, 113 N.Y.S.3d 673, 137 N.E.3d 43 [2019] ). Defendant also failed to preserve his contention that he was convicted on the basis of an uncharged theory of guilt (see People v. Hursh , 191 A.D.3d 1453, ––––, 138 N.Y.3d 437 [Feb. 11, 2021] [4th Dept. 2021] ).
Contrary to defendant's additional contention, viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. White , 179 A.D.3d 1444, 1444-1445, 118 N.Y.S.3d 823 [4th Dept. 2020], lv denied 35 N.Y.3d 945, 147 N.E.3d 549 [2020] ; People v. Wallace , 259 A.D.2d 978, 978-979, 688 N.Y.S.2d 327 [4th Dept. 1999], lv denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112 [1999] ).
We agree with defendant, however, that the court committed various errors at sentencing that require modification of the judgment. With respect to the two counts of operating a vessel while under the influence of alcohol or drugs, the court imposed, in addition to concurrent one-year terms of imprisonment, what it believed was a mandatory $1,500 fine. However, defendant's conviction of each of those counts was punishable by up to one year of imprisonment "or by a fine of not less than five hundred dollars nor more than one thousand dollars, or by both such fine and imprisonment" ( Navigation Law § 49-a [2] [f] [1] ). We therefore modify the judgment by vacating the fine, and we remit the matter to County Court to determine whether to impose a fine and, if so, to fix a legal amount thereof (see People v. Butler , 46 A.D.3d 1333, 1334, 848 N.Y.S.2d 497 [4th Dept. 2007] ; see also People v. Smith , 309 A.D.2d 1282, 1283, 764 N.Y.S.2d 732 [4th Dept. 2003] ). Regarding those same counts, in addition to the fine, the court imposed $395 in surcharges and fees. By law, the court should have imposed a $175 surcharge and a $25 crime victim assistance fee with respect to those counts (see Penal Law § 60.35 [1] [a] [ii] ; [2]; Navigation Law § 49-a [2] [f] [1] ). Although defendant failed to preserve for our review his contention regarding the proper surcharge and crime victim assistance fee to be imposed with respect to those counts, we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ), and we further modify the judgment by reducing the mandatory surcharge imposed under counts two and three of the indictment to $175 with a $25 crime victim assistance fee (see generally People v. Smith , 57 A.D.3d 1410, 1411, 870 N.Y.S.2d 209 [4th Dept. 2008] ). Additionally, the court lacked the authority to revoke defendant's driver's license as part of his sentence pursuant to Vehicle and Traffic Law § 510 (2) because the victim's death did not result from the operation of "a motor vehicle or motorcycle" ( § 510 [2] [a] [i] ), and we therefore further modify the judgment accordingly.