Brief for the Respondent in Opposition — Kealey v. New York

Or. U. 8

l JAN 11 1974

ROBAK, JR_OLERK

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-979

EUGENE KEALEY,

Petitioner,

—against—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

BRIEF IN OPPOSITION TO A PETITION FOR A WRIT

OF CERTIORARI TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

WILLIAM CAHN

District Attorney

Nassau County

County Court House

Mineola, N.Y.

(Attorney for Respondent)

Henry P. DEVINE

Assistant District Attorney

of Counsel.

— 2

TABLE OF CONTENTS

PAGE

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r, e cho idc cans cuss eae er ees 2

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hö ĩ %˙ͤ⁰ ⅛ðͤ- ee 3

h www cunaee 6

Evidence of Intoxi cation 7

C 06-55 Php 008s6basEssetne 8

Reasons for Denying the Writ .................. 14

Sy Ge — -/ ĩ⅛ «ê⅛ũ·˙ùqʒTyÄ ! 20

// ˙ cas peeved A 23

%% 37

CASES CITED

Brown v. Shyne (1926) 242 N.Y.176............ 22

Chaplinsky v. New Hampshire (1942) 315 U.S. 568 15

Connally v. General Construction Co. (1926) 269

Re er re pre rey pre errr 15, 16

International Harvester Co. v. Kentucky (1914) 234

%%//ͤ ͤ A cadedensasebes 15, 16

Lanzetta v. New Jersey (1939) 306 U.S. 451 16

Matter of Enos v. Macduff (4th Dept. 1953) 282

— mQqRñsS ⁰ 36

Nash v. United States (1913) 229 U.S. 378. 15, 16

Omaechevarria v. Idaho (1918) 246 U.S. 343. 15, 16

ii

PAGE

People v. Angelo (1927) 246 N.Y. 411. 22, 23

People v. Bearden (1943) 290 N.Y. 478 .......... 22, 23

People v. Carlson (Co. Ct. Kings Co. 1941) 176

c 23

People v. Curnuch (Co. Ct. Kings Co. 1941) 177

1 23

People v. Decina (1956) 2 N.Y. 2d 133. 21, 23, 36

People v. Diaz (1958) 4 N.Y. 2d 469. 20

People v. Eckert (1956) 2 N. V. 2d 12. 22, 23, 36

People v. Grogan (1932) 260 N. V. 13332. 19

People v. Haney (1972) 30 N.Y. 2d 32229292. 31, 36

People v. Mancuso (1931) 255 N.Y. 468898. 18

People v. Pace (4th Dept.) (1927) 220 App. Div. 495 22

People v. Pagnotta (1969) 25 N.Y. 2d 338389. 20

People v. Rosenheimer (1913) 209 N. V. 1155. 22

People v. Williams (1946) 187 Misc. 299 21

People v. Zambito (1959) 21 Misc. 2d 815 ........ 30

Waters-Pierce Oil Co. v. Texas (1909) 212 U.S. 86.. 15

Whitney v. California (1927) 274 U.S. 3577 15

Winters v. New York (1948) 306 U.S. 507 ........ 16

United States v. Brewer (1891) 139 U.S. 278 15

United States v. L. Cohen Grocery Co. (1921) 255

y; ̃ ͤꝙkT§‚ 0 15

United States v. Wurzbach (1930) 280 U.S. 396 ... 15

—

iii

OTHER AUTHORITIES

PAGE

Penal Law, Gen. BOGE, CURE © onic . 20

153-a (Laws 1936, Ch. 733) ..... 21, 22

CC 23, 24, 25, 31

r 24, 31, 32, 35

r ndeaeuees 24, 25, 35

Vehicle & Traffic Law, Sections 1192-1194

L. 1959, e. 775 amended L. 1960, e. 184, Sec. 1... 27

„CCC 27

PP 27

c ohincecncass 27

C 28

I. 1969, e. 146, eff. Jan. 1, 1970 28

I. 1970, e. 275, Sec. 3; amended L. 1971, e. 495,

. SR eee 28

I. 1971, e. 200, eff. Sept. 1, 19711... 28

ee, eee eens 28

I. 1971, e. 445, Secs. 1, 2, eff. Sept. 1, 1971. 28

L. 1971, e. 928, eff. Jan. 1, 19722 28

Richardson on Evidence, 9th Ed. Sec. 1ũddi 30

—— See

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-979

EUGENE KEALEY,

Petitioner,

—against—

THE PEOPLE OF THE STATE OF NEW TORK,

Respondent.

dé.

*

BRIEF IN OPPOSITION TO A PETITION FOR A WRIT

OF CERTIORARI TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK

To THE HONORABLE THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

The petitioner, Eugene Kealey, prays that a writ of

certiorari shall issue to review a judgment of the New York

State Court of Appeals entered on November 21, 1973,

affirming the deeision of the Appellate Division of the

Supreme Court, Second J udicial Department, which, in

turn, affirmed a judgment of conviction of petitioner in the

County Court, Nassau County, of Criminally Negligent

Homicide. Petitioner received an indeterminate sentence

of up to 3 years and was admitted to bail pending the

appeal. Petitioner remains at liberty on bail at the present

time.

|

|

Opinions Below

There were no published reports or opinions in the

County Court, Appellate Division, or the New York State

Court of Appeals.

Jurisdiction

The jurisdiction of this Court is apparently sought pur-

suant to 28 U.S. C., § 1257, subd. 3, it being argued that

§ 125.10, Penal Law, State of New York, defining a crim-

inally negligent homicide is so vague and obscure as to

violate the due process clause of the Fourteenth Amend-

ment and Article I, § 9, as well.

Introduction

Richard Lucey and Margaret Gribben were traveling

in a northerly direction on Bayville Road at 6 P.M. the

evening of September 14, 1968, in a Chrysler automobile.

They were accompanied by Richard Miller, Mrs. Gribben’s

grandson, and his pet dog. The Chrysler was struck in the

left rear by the right front of appellant’s Ford as appellant

attempted to pass. The Lucey Chrysler was catapulted

into a tree on the easterly side of the road killing the pet

dog and Mrs. Gribben instantly. Mr. Lucey died the same

night in a nearby hospital. The grandson, Richard Miller,

was seriously injured but survived. Appellant’s Ford spun

around and came to rest in a southbound lane facing south.

Petitioner insists § 125.10, Penal Law, which defines

the substantive crime of Criminally Negligent Homicide is

so indefinite and uncertain as to fail to give notice to

motorists and others in New York of the conduct to be

avoided. More particularly, it is argued that the test or

standard as construed by the New York State Court of

N eder. — ———

3

Appeals is itself so uncertain as to fail the test of the

Fourteenth Amendment. The respondent argues to the

contrary.

The Evidence

THOMAS HICKEY (639, et seg.) is the proprietor of a

Shell Gas Station in Locust Valley who testified that at

6 P.M. the evening of September 14, 1968, appellant drove

up to the station in a new blue Ford and ordered $2 worth

of gasoline. Mr. Hickey filled the order but the defendant

complained that he had asked for $3 worth of gas. Mr.

Hickey put the additional gas in the car and gave appellant

a card which the gasoline company had been giving out to

its customers during a promotion. Mr. Hickey testified

appellant slapped $3 into his hand, threw away the promo-

tion card, and sped off at a high rate of speed. According

to the witness, appellant left tire marks on the street as

he spun the wheels so rapidly.

Mr. Hickey observed appellant for six to eight minutes

and noted appellant’s eyes were very bloodshot, his face

very red, and he could smell a strong odor of intoxicating

liquor as appellant spoke with him. In Hickey’s opinion

Kealey was intoxicated.

It is undisputed that after leaving the Hickey gas sta-

tion, appellant made his way to Bayville Road and was

traveling in a northerly direction from Locust Valley to

Bayville.

The first eyewitness summoned by the District Attorney

was DANIEL SIMONE (271, et seg.) who testified that he was

traveling north on Bayville Road in the passing lane,

directly to the rear of appellant. Simone described Bay-

ville Road as a four-lane highway, running generally in a

north-south direction. There were no improved parking

4

areas on the shoulder of the road. Instead, it was lined

with shrubbery and trees.

Continuing, Simone testified that appellant moved to the

inside lane so he started to pass when suddenly appellant

swung back in front of him and continued across the double

yellow line in the middle of the road into the fast lane of

the southbound traffic (275-277).

Simone watched appellant and according to the witness,

he kept drifting to his left until he reached the inside lane

of the southbound traffic (277), where appellant swerved

back across the passing lane southbound, and continued

across the double yellow line into the passing lane north-

bound (278).

Continuing, Simone testified appellant veered partway

into the curb or slow lane nearly colliding with a little red

car that was heading north in the slow lane (279-280).

Simone continued to observe appellant’s operation of

his new blue Ford, and he testified that appellant next

veered west away from the little red Saab until he straddled

the double yellow line dividing the north and southbound

traffic (280). Simone was traveling at 35-40 m.p.h. and

appellant was traveling faster.

According to Mr. Simone, he watched appellant dis-

appear over the crest of a rise, still straddling the double

yellow line. Simone next saw appellant at the death scene

a short distance beyond the rise in the road.

BRIAN GARY HENDRICKSON (342, et seg.) was driving

his 1962 Ford northbound on Bayville Road in the curb

lane when he saw appellant’s blue Ford straddle the double

yellow line. According to Hendrickson, appellant’s car

drifted over to the curb line northbound, then back to the

double yellow line, where appellant weaved back and forth

ene —

5

(347-348). The witness estimated the speed at 45 m. p. h.

(347). Hendrickson also noticed the little red Saab and

he testified that as the appellant attempted to pass, he went

across the double solid line completely into the fast lane

of the southbound traffic, and then came back across the

double yellow line into the fast lane northbound. Hendick-

son lost sight of appellant as he went over a rise. Next

J heard an explosion, it sounded like an explosion, a loud

thump, and I continued over the crest of the hill on Bayville

Road. I noticed a blue Chrysler on the right hand side up

against atree. That’sit” (352).

The third eyewitness was REGINALD SCHULTZ (389, et

seq.), the driver of the little red Saab. According to Mr.

Schultz, he was driving slowly on Bayville Road in the curb

lane towards Bayville in a northerly direction when appel-

lant passed him and swerved over into the passing lane

southbound, then back into the passing lane northbound

where appellant came close to the left rear fender of still

another car directly in front of him (390).

According to Mr. Schultz, appellant then swung back

across the double yellow line almost to the curb or outside

lane southbound (391). Mr. Schultz testified that appellant

actually traveled back and forth across the four lanes of

the highway over a distance of approximately *4ths of a

mile (392).

Mr. Schultz discovered the accident when he came over

the incline in the road (394).

The fourth eyewitness was THOMAS D. PEIFFER (525,

et seq.) , Director of Athletics at Locust Valley High School.

Mr. Peiffer testified he was driving in a northerly direction

towards Bayville behind the death car at 35-40 m.p.h. for

two to three miles when suddenly appellant passed him

traveling north but in the southbound passing lane. Mr.

Peiffer was attracted to appellant’s car, and he testified |

that appellant came back across the double yellow line

to a point to the rear of the death car when appellant

started to swing back across the street. It was at this

point that appellant hit the left rear of the death car with

his right front. According to Mr. Peiffer, the death car

immediately shot off the road into a tree, whereas appel-

lant’s Ford spun around and came to rest in the southbound

lane facing south.

The final eyewitness, FRED IZZOLO (681, et seg.) had just

passed the death car heading north on Bayville Road, and

was swinging back into the curb lane when he looked in his

rear view mirror and saw appellant slam into the left

rear of the death car. According to Mr. Izzolo, “It was

like a double impact. A double shot two contacts

close together * * it just happened so fast, the Chrysler

[boomeranged away] like a slingshot, away from the first

impact and then the second impact and it slingshotted away

from the road” (686).

The Death Scene

It is undisputed the death car was catapulted into a

tree bordering the road killing the pet dog and Mrs. Grib-

ben instantly. Mr. Lucey died two hours later at the

Glen Cove Hospital and Mrs. Gribben’s grandson, Richard

Miller, was severely injured but recovered. According to

the Miller lad, he and his puppy were sitting in the back

seat on the way to dinner at Bayville with his grandmother

when the accident occurred; the next thing he remembers

coming to in the Glen Cove Hospital (265, et. seg.)

Dr. PAUL ROSSANO (586, et seg.) lived nearby the

accident scene. He testified he pronounced Mrs. Grib-

ben and the dog dead at the scene. It was stipulated

5 SED Eh a Cer ee ae ae 2 see ewe —— — —

7

Dr. R. J. Muoso (639, et seg.) would testify Mr. Lucey died

at the Glen Cove Hospital at 8:40 P.M. about two hours

after the accident.

Dr. DANIEL MCCARTHY (608, et seq.) performed the

autopsies and discovered Mr. Lucey and Mrs. Gribben died

from spinal fractures which could have been caused by the

accident.

Evidence of Intoxication

In addition to the erratic operation of the car, it was

appellant’s physical appearance at the scene as much as

anything else that sealed his doom. For example, EVERETT

HAWTHORNE (550, et seq.), the publisher and editor of a

small weekly newspaper called the “Bayville Times and

Common Sense” came upon the accident scene and dis-

covered appellant was drunk (558). He reached this opin-

ion because he “noticed a very heavy odor of digested alcohol

on the gentleman’s breath” (553). His judgment that ap-

pellant was intoxicated was corroborated by appellant’s

appearance when he got out of the car. According to Mr.

Hawthorne, appellant was held up by two police officers

who had a hold of him under each arm. His legs were

dragging and he was not walking in a normal fashion

(556-557).

Mr. Hawthorne also testified defense counsel at the

trial, Terence Gaffney, was at the scene. The editor’s

opinion that appellant was badly intoxicated and incapaci-

tated was corrborated by LIEUTENANT JOHN KETELTAS

(416, et seg.) who testified that when he found the appellant

at the scene, appellant’s speech was slurred and unintel-

ligible.

According to the Lieutenant, appellant was mumbling,

his eyes were glazed, his face flushed, and he smelled alco-

hol on the appellant’s breath.

8

The Lieutenant was substantiated by PATROLMAN WAL-

TER DUCHNOWSKI (437, et seg.) and PATROLMAN SEBASTIAN

CoruzzI (450, et seg.) who assisted appellant from his auto

to the police vehicle. According to each of the patrolmen,

appellant’s speech was slurred, his eyes bloodshot, and he

reeked of alcohol. Each patrolman testified appellant stag-

gered when he tried to walk, and in their opinion was very

intoxicated.

The Defense

EUGENE KEALEY (869-921) took the stand in his own

behalf and testified that on September 14, 1968, during mid-

afternoon, he was at his home, 2 Meleny Road, Locust

Valley, with a neighbor-friend Leay (869-71).

Leay had a gin and the defendant had a beer, the

defendant claiming he had drunk nothing at all up to that

time (870-71).

His wife, out most of the day, returned (871) and

Kealey stated he left his home about 5:10 or 5:15 P.M. to

go shopping (871-72).

Kealey said he first drove his new Ford to Phil’s Sport

Shop in Glen Cove, then to the cleaners (872-77), and next

to a Shell gasoline station where his gas tank was filled up,

and he paid with a $10 bill (874).

Kealey swore he had no conversation with anyone at the

gas station and Mr. Hickey’s version of what transpired

was totally incorrect (874, 882-83, 893).

Kealey then travelled to a liquor store, and bought a

quart of gin (874-75).

From the liquor store, Kealey drove to a road leading

to Horse Hollow Road which, in turn, continued into the

Bayville Road (875).

— reel

9

The defendant claimed his speed on the Bayville Road

was between 35 to 40 miles per hour and he did not recall

passing any vehicles on the Bayville Road (876).

Kealey claimed he was driving in the right lane heading

north on the Bayville Road, intending to make a right turn

into Meleny Road, when he remembered he had to get some

milk and bread in Bayville (877).

According to him, he pulled out to pass a car which sort

of moved in front of him and then slowed down, at which

time his car struck the other car (877-78, 906, 909).

There was another, he claimed almost instantaneous,

collision with this car, and he next remembered waking up

on the other side of the road, where he noticed an ambu-

lance light on the other side of the road (878).

Kealey vaguely remembered getting into a Police car

and going to a Police station (878-79).

He did recall he had been arrested and booked through

to headquarters in Mineola, whereafter he was bailed out

that night (878-79).

After being bailed out, he went to Mr. Leay’s house and

contacted a doctor, after which he was admitted to Oyster

Bay Hospital (879). w

Kealey said he had a tremendous headache at the time

(880), and that he was discharged from the hospital on

Monday (880).

On cross-examination, Kealey, contrary to his direct

testimony (876), testified he did pass cars on the four-lane

Bayville Road (898, 900-02).

Kealey grudgingly conceded he might have gone over

the double line a foot or so in passing these cars because

of the narrowness of the lanes or highways (902).

10

Kealey contended the testimony of Messrs. Simone,

Schultz and Hendrickson, with respect to the erractic man-

ner of his driving, was incorrect (903, 904).

To complete his exculpatory attempt, Kealey stated the

witnesses who said the Chrysler was in the slow or curb

lane when it was hit, were in error (910, 921).

JEAN KEALEY (783-802), the defendant’s wife testified

there was nothing unusual about her husband’s condition,

and she detected no odor of alcohol about him that late

afternoon (784-90).

Her husband left the house about 5:15 to do some shop-

ping in Glen Cove and Bayville, and dinner was to be about

6:15 or 6:30 P.M. (784-85).

Mrs. Kealey agreed that the Bayville Road was a nar-

row, four-lane highway, having no shoulders, and with

trees growing very close to the edge of the road (801).

Mrs. Kealey had no personal knowledge of whether her

husband had anything to drink while she was gone or out

of his presence (790).

Eventually there came a time when she became aware

of the collision. At the scene, she saw her husband looking

straight ahead. She asked him if he was okay. He didn’t

say anything to her then. He had an ashen look, and his

good wife did not detect the odor of alcohol emanating from

her husband (786, 793).

The defendant later complained of headaches, still

looked ashen, so he went to the Oyster Bay Hospital where

he was admitted and subsequently released on Monday

(787-89).

On cross-examination, the prosecutor asked Mrs. Kealey

whether or not her husband was a heavy drinker, to which

11

immediate objection was interposed, and sustained, without

any answer being given by the witness (794).

Counsel then moved for a mistrial, and a colloquy was

had in the absence of the jury, at the conclusion of which

the motion was denied and the jury instructed to disregard

the question, that answers and not questions were the evi-

dence they were to consider (795-97).

JOHN LEAY (846-67), formerly a neighbor, and still a

good friend of the defendant (864), testified he was with

the defendant between 2 and 3:30 P.M. on September 14,

1968, during which time he did not smell any alcohol on the

defendant (848) or notice anything unusual about him

(848-49).

Leay and Kealey went to the kitchen for a drink. There

was only enough gin for one drink, which Leay consumed

with tonic, whereas the defendant had a can of beer (849).

Leay left Kealey at about 4 P.M. and later, after hear-

ing the noise of the collision, saw defendant’s car on the

opposite side of the Bayville Road (850-52, 863).

Kealey appeared dazed and his complexion was pale,

the witness saying he could not understand the defendant’s

answers (853, 864).

Kealey’s good friend claimed the Police pulled the de-

fendant out of his car but defendant got into the Police car

without any assistance. He also heard the defendant state

he was waiting for a doctor (855-59, 866).

DAVID ARMSTRONG (808-20), the manager of Phil’s Sport

Shop in Glen Cove (803), testified that at about 5:30 to

5:40 P.M. on Saturday, September 14, 1968, the defendant

came to his store and bought some merchandise (803-09).

The defendant remained in the store for about 20 min-

utes, departing about 5:55 or 6 P.M. (803-06).

12

The witness merely measured Kealey’s waist. The wit-

ness was in a hurry to get the defendant in and out of the

store, had no reason to check on the defendant’s condition,

and he was not really eyeing or examining Kealey very

closely (816-19).

Based on this minimal conduct and observation, Arm-

strong could not say he had detected any odor of alcohol

about the defendant or that defendant’s speech, motion,

etc. were unusual (805, 807-10).

IRVING WALLACH (749-59), the manager of a cleaning

store in Glen Cove on the day in question (749-50) , testified

he closed up his store and went outside a few minutes after

6:00 P.M., when the defendant pulled up near the store

(750). Mr. Wallach merely asked the defendant whether

he wanted the witness to reopen the store to get Kealey’s

cleaning and Kealey replied he’d be back Monday for his

clothing, and left (750).

This entire outdoor encounter took less than a minute

(755), and Mr. Wallach did not take note of the defendant’s

condition, didn’t smell his breath, and could only recall that

the defendant’s speech appeared to be alright and did not

appear any different than he normally did (751, 755-56).

HENRY WALTER, JR. (759-73), connected with the

Dupree Liquor Store in Locust Valley on September 14,

1968, testified that at about 6:20 P.M. the defendant came

into his store and the witness induced the defendant to buy a

quart of gin since the quarts were on sale (760-62).

Mr. Walter further testified there were very few words

spoken between himself and Kealey, the defendant being in

the store for no more than 3 or 4 minutes (763, 769-70).

Mr. Walter saw no evidence of defendant being intoxi-

cated, observed nothing unusual about defendant’s speech,

— —— ——— —v— . ee

13

demeanor or walk, although he conceded when he did have

his few words with the defendant they were separated by

a store counter, which was at least 3 feet wide (73-64, 770).

Walter assumed Kealey was not intoxicated that night

(770-71).

Walter, familiar with the area, said one could drive

40 miles per hour on Horse Hollow Road and the Bayville

Road and could get to the scene of the collision from the

liquor store within 7 minutes (769).

Moreover, Walter further testified the defendant pur-

chased a bottle of liquor about once a week average (771).

Dr. JOSEPH BEBRY (926-46), a surgeon, testified he saw

the defendant at the Oyster Bay Hospital at about 1:15

A.M., after the occurrence, and his admitting diagnosis,

inter alia, was a cerebral concussion (929-30, 944).

However, there were no tests performed to confirm the

concussion diagnosis; only a visual, physical examination

(930). X-Rays of Kealey’s skull proved negative (935).

Bebry, regarding causes of odors which could smell

like alcohol, conceded there was no evidence of blood in

the defendant’s mouth; no evidence the defendant was a

diabetic; and obviously no evidence of the defendant being

poisoned by carbon monoxide (933, 935-37, 940-44).

Dr. RICHARD GRIMES (827-46) testified as an expert

witness and generally agreed with Dr. McCarthy’s find-

ings, that the accident was the competent producing cause

of death of the victims, but disagreed with the opinion of

Dr. McCarthy concerning the cause of the spinal injuries

inflicted upon both victims (829-34, 844).

Dr. Grimes also testified a person in post-traumatic

shock with a concussion could have symptoms similar to

those observed in alcoholism (837-38).

14

However, if alcohol was smelled on one’s breath, a

diagnosis of intoxication would be equally consistent

(837-38).

One of the symptoms of a concussion would be palor

(834-44).

The doctor believed there would be no difference in the

smell of a person’s breath whether he had one or twenty

drinks (839).

In examining the autopsy report concerning Mr. Lucey’s

liver, Dr. Grimes stated this represented something com-

monly seen in chronic alcoholism, although it could be due

to other causes (834).

Dr. Grimes clearly indicated he placed no value on a

layman’s opinion as to whether or not another person was

intoxicated. The doctor believed a medical opinion would

be more valid (846).

Reasons for Denying the Writ

Petitioner insists certiorari should issue because the

constitutionality of the statutes involved, i.e. § 125.25,

Penal Law, and § 15.05, subd. 4, Penal Law, have not been

construed by the courts of New York. More particularly,

petitioner contends that similar statutes exist in Illinois,

Wisconsin and Michigan (7) so the issues are of impor-

tance not only to motorists of New York, but elsewhere in

the United States as well. The respondent contends cer-

tiorari should be denied because the statutes involved have

been construed by the New York State Court of Appeals

consistent with the minimum requirement of the Four-

teenth Amendment. Further, the New York State Court of

Appeals has not construed § 125.10 or § 15.05, subd. 4, in

a way that would violate any provision of the Constitution

——— —-— — — —

15

of the United States. Resolution of the issues requires a

review of the old statutes and settled case law in New York,

plus a close appraisal of the new statutes dealing with

vehicular homicide.

The idea that indefiniteness in a criminal statute vio-

lates the Fourteenth Amendment of the Constitution of

the United States does not seem to have been considered

by the United States Supreme Court until the latter part of

the nineteenth century. One of the earliest pronounce-

ments on the subject appears in United States v. Brewer

[1891] 139 U.S. 278. The Brewer case was a prosecution

for election fraud under a Tennessee statute. By way of

dicta on page 288, the Court said:

“Laws which create crime ought to be so ex-

plicit that all men subject to their penalties may

know what acts it is their duty to avoid. United

States v. Sharp, Pet. C.C. 118.”

With the turn of the century, the question was squarely

before the Court in Waters-Pierce Oil Co. v. Texas [1909]

212 U.S. 86. Following the decision in the Waters-Pierce

Oil Co. case, more and more of the Court’s time has been

taken up by the problem of indefiniteness in penal statutes.

The general rule is the terms of a penal statute creating a

new offense must be sufficiently explicit to inform those

who are subject to it what conduct on their part will render

them liable to its penalties (Nash v. United States [1913]

229 U.S. 378; International Harvester Co. v. Kentucky

[1914] 234 U.S. 216; Omaechevarria v. Idaho [1918] 246

U.S. 343; United States v. L. Cohen Grocery Co. [1921] 255

U.S. 81; Connally v. General Construction Co. [1926] 269

U.S. 385; Whitney v. California [1927] 274 U.S. 357;

United States v. Wurzbach [1930] 280 U.S. 396; Chap-

linsky » New Hampshire [1942] 315 U.S. 568). Statutes

16

may be indefinite as to the persons subject thereto (Lan-

zetta v. New Jersey [1939] 306 U.S. 451) or the conduct

to be avoided (Winters v. New York [1948] 333 U.S.

507). It will be noted that there does not seem to be any

material difference of opinion in the Supreme Court as

to the rule although the Court has frequently divided as

to its effect in a given case (Nash v. United States,

supra; International Harvester Co. v. Kentucky, supra;

Omaechevarria v. Idaho, supra; Connally v. General Con-

struction Co. supra; Winters v. New York, supra).

In Winters v. New York, supra, the Supreme Court

reversed a judgment of conviction under 5 1141, subd. 2

of the former Penal Law of the State of New York be-

cause the statute was indefinite. Although Judge Frank-

furter, in a dissenting opinion joined in by Judge Jack-

son and Judge Burton, differed with the majority as to

the effect of the rule on the statute, so much of his opin-

ion as deals with the rule itself is not disputed. It may

be taken as an accurate statement of the law and consti-

tutes one of the clearest discussions of the principle of

indefiniteness found in any of the pronouncements of the

Supreme Court. Appearing on pages 524, 525 and 526,

I quote:

“Fundamental fairness of course requires that

people be given notice of what to avoid. If the

purpose of a statute is undisclosed, if the legisla-

ture’s will has not been revealed, it offends rea-

son that punishment should be meted out for con-

duct which at the time of its commission was not

forbidden to the understanding of those who wished

to observe the law. This requirement of fair notice

that there is a boundary of prohibited conduct not

to be overstepped is included in the conception of

— — ......

17

‘due process of law’. The legal jargon for such

failure to give forewarning is to say that the statute

is void for ‘indefiniteness.’

“But ‘indefiniteness’ is not a quantitative con-

cept. It is not even a technical concept of definite

components. It is itself an indefinite concept. There

is no such thing as ‘indefiniteness’ in the abstract, by

which the sufficiency of the requirement expressed by

the term may be ascertained. The requirement is

fair notice that conduct may entail punishment.

But whether notice is or is not ‘fair’ depends upon

the subject matter to which it relates. * * * That

which may appear to be too vague and even mean-

ingless as to one subject matter may be as definite

as another subject matter of legislation permits, if

the legislative power to deal with such a subject is

not to be altogether denied. * * *

“In these matters legislatures are confronted

with a dilemma. If a law is framed with narrow

particularity, too easy opportunities are afforded to

nullify the purposes of the legislation. If the legis-

lation is drafted in terms so vague that no ascertain

able line is drawn in advance between innocent and

condemned conduct, the purpose of the legislation

cannot be enforced because no purpose is defined.

* * * The reconcilation of these two contradictories

is necessarily an empiric enterprise largely depend-

ing on the nature of the particular legislative prob-

lem.

“What risks do the innocent run of being caught

in a net not designed for them? How important is

the policy of the legislation, so that those who really

like to pursue innocent conduct are not likely to be

18

caught unaware? How easy is it to be explicity

particular? How necessary is it to leave a somewhat

penumbral margin but sufficiently revealed by what

is condemned to those who do not want to sail close

to the shore of questionable conduct? These and like

questions confront legislative draftsmen. Answers

to these questions are not to be found in any legisla-

tive manual nor in the work of great legislative

draftsmen. They are not to be found in the opinions

of this Court. These are questions of judgment,

peculiarly within the responsibility and the compe-

tence of legislatures. The discharge of that respon-

sibility should not be set at naught by abstract

notions about ‘indefiniteness.’ ”

The Court reviewed a conviction in People v. Mancuso

[1981] 255 N.Y. 463, for participating as directors in the

fraudulent insolvency of a monied corporation in violation

of § 297, subd. 1 of the Penal Law. Speaking for the Court

on page 470, Judge Cardozo said of indefiniteness:

“The act is not shorn of certainty of meaning by

its reference to a standard of customary diligence.

The power of the Legislature to make it a crime for

banking officers to be so neglectful of their duties as

to involve their banks in ruin is hardly to be doubted.

The power existing, one is at a loss to i:uagine how

the prohibited omissions could be more accurately

stated, without a catalogue of particulars not suscep-

tible of enumeration in advance of the event (ef. In-

ternational Harvester Co. v. Kentucky, 234 U.S. 216,

at 223). ‘The law is full of instances where a man’s

fate depends on his estimating rightly, that is, as the

jury subsequently estimates it, some matter of de-

gree.’ (Nash v. United States, 229 U.S. 373, 377.)

‘The precise course of the line may be uncertain, but

—

19

no one can come near it without knowing that he

does so, if he thinks, and if he does so, it is familiar

to the criminal law to make him take the risk’

(United States v. Wurzbach, 280 U.S. 396, 399).

Much will depend on the distinction whether the

standard is an old one, long recognized in law and

life (International Harvester Co. v. Kentucky, 234

U.S. 219, 228), or one novel and unfamiliar, not yet

approaching certainty, at least in measurable degree,

through habitude and example.”

In People v. Grogan [1932] 260 N.Y. 138, the Court

reviewed a conviction of Reckless Driving under § 58 of the

Vehicle and Traffic Law. The statute was attacked on the

ground of indefiniteness. In upholding the constitutionality

of 4 58, Judge Crane speaking for the Court on pages 145

and 146 stated:

“Statutes which create crimes must be definite in

specifying conduct which is condemned or prohibited.

They must afford some comprehensible guide, rule or

information as to what must be done and what must

be avoided, to the end that the ordinary member of

society may know how to comply with its require-

ments. ‘Laws which create crime ought to be so ex-

plicit that all men subject to their penalties may

know what acts it is their duty to avoid.’ (United

States v. Brewer, 139 U.S. 278, 288; Nash v. United

States. 229 U.S. 373; International Harvester Co. v.

Kentucky, 234 U.S. 216; McBoyle v. United States,

283 U.S. 25-27; Cline v. Frink Dairy Co., 274 U.S.

445,459). In the latter case Chief Justice Taft said

‘generally that the decisions of the court upholding

statutes as sufficiently certain, rested upon the con-

clusion that they employed words or phrases having

20

a technical or other special meaning, well enough

known to enable those within their reach to correctly

apply them, * * * or a well-settled common law mean-

ing, notwithstanding an element of degree in the defi-

nition as to which estimates might differ, * * * or,

as broadly stated by Mr. Chief Justice White in

United States v. Cohen Grocery Co. (255 U.S. 81,

92), ‘that for reasons found to result either from the

text of the statutes involved or the subjects with

which they dealt, a standard of some sort was

afforde 5 *

More recently, the Court addressed itself to the con-

stitutionality of a disorderly conduct ordinance in the City

of Dunkirk and said (People v. Diaz [1958] 4 N.Y. 2d 469,

p. 470) :

It is the rule that for validity a criminal statute

must be informative on its face (People v. Firth,

3 N.Y. 2d 472) and so explicit that ‘all men subject

to its penalties may know what acts it is their duty

to avoid.’ ”

In People v. Pagnotta [1969] 25 N.Y. 2d 333, Judge

Jasen wrote (p. 337) :

ea statute must be sufficiently definite to give

a reasonable man subject to it notice of the nature of

what is prohibited and what is required of him.”

Testing § 125.10 and § 15.05, subd. 4, by the foregoing

general rules suggests the statutes are not so uncertain or

indefinite as to be unconstitutional.

History and Prior Law

Initially, death due to an automobile accident was prose-

cuted as Manslaughter Second Degree (§ 1052, subd. 3,

Penal Law), the statute reading as follows:

21

“Such homicide is manslaughter in the second de-

gree, when committed without a design to effect

death: by any act, procurement or culpable negli-

gence of any person which, according to the provi-

sions of this article does not constitute the crime of

murder in the first or second degree, nor man-

slaughter in the first degree.”

It has been judicially acknowledged that trial judges,

prosecutors and others experienced at the trial level found

juries were reluctant to convict (1) because the act was

labeled manslaughter; and (2) because of the severity of

the sentence (People v. Decina [1956] 2 N.Y. 2d 133; p.

147; People v. Williams [1946] 187 Misc. 299).

To remedy the situation, the New York State District

Attorneys Association recommended to the Legislature

that a special statute be adopted to deal exclusively with

vehicular homicides involving culpable negligence (supra).

Section 1053-a followed (Laws 1936, Ch. 733) providing:

“A person who operates or drives any vehicle of

any kind in a reckless or culpably negligent manner,

where a human being is killed, is guilty of criminal

negligence in the operation of a vehicle resulting

in death.”

Although dissenting, Judge Desmond’s comments in

People v. Decina (supra) regarding the history of 5 1053-a

were accurate. The judge there noted (p. 147):

“The purpose of and occasion for the enactment

of § 1053-a is well known (see Governor’s Bill Jacket

on L. 1936, Ch. 733). It was passed to give a new

label to, and to fix a lesser punishment for, the

culpably negligent automobile driving which had

formerly been prosecuted under section 1052 of the

22

Penal Law defining manslaughter in the second de-

gree. It has been found difficult to get manslaughter

convictions against death-dealing motorists.”

It will be seen that § 1053-a was directed to the opera-

tion of a vehicle in a “reckless or culpably negligent man-

ner” and to spell out a prima facie case the evidence must

establish “something more than the slight negligence neces-

sary to support a civil action for damages” (People v.

Bearden [1943] 290 N.Y. 478, p. 482), for “A distance

separates the negligence which renders one criminally liable

from that which establishes civil liability.” (People v.

Bearden, supra, p. 483; People v. Rosenheimer [1913]

209 N.Y. 115, p. 123; People v. Eckert [1956], 2 N.Y.

2d 126, p. 180; Brown v. Shyne [1926] 242 N.Y. 176, pp.

182-183; People v. Pace [4th Dept. 1927] 220 App. Div.

495, p. 497).

The negligence must be culpable and reckless to bring

the defendant into the prohibition of § 1053-a and of negli-

gence which is culpable it has been said that it is such as is

deserving blame, censure, condemnation and punishment

(People v. Angelo [1927] 246 N.Y. 451, p. 453; People v.

Eckert [1956] 2 N.Y. 2d 126, p. 180), so that it reaches

“beyond the bounds of lack of skill and foresight where

civil liability begins to a point where criminal liability is

imposed because the negligence is not merely venial but

is ‘culpable’, involving fault for which the State may de-

mand punishment” (Brown v. Shyne [1926] 242 N.Y. 176,

p. 183; People v. Angelo [1927] 246 N.Y. 451, p. 457;

People v. Eckert, supra, p. 130).

“Mere lack of foresight, stupidity, irresponsibility,

thoughtlessness, ordinary carelessness, however serious the

consequences may happen to be, do not constitute culpable

negligence. There must exist in the mind of the accused

10 eee we eder en- em eM

28

at the time of the act or omission, a consciousness of the

probable consequences of the act, and a wanton disregard

of them” (People v. Carlson [Co. Ct. Kings Co. 1941], 176

Misc. 230, p. 232).

„Culpable negligence is therefore something more than

the slight negligence necessary to support a civil action

for damages. It means, disregard of the consequences

which may ensue from the act, and indifference to the rights

of others” (italics mine). (People v. Angelo [1927] 246

N.Y. 451, p. 457; People v. Bearden [1943] 290 N.Y. 478,

p. 482; People v. Grogan [1932] 260 N.Y. 138, pp. 144-145;

People v. Eckert [1956] 2 N.Y. 2d 126, p. 180; People v.

Gardner [4th Dept. 1989], 255 App. Div. 683, 685).

The sufficiency of the evidence has been before the

courts on numerous occasions, sometimes by way of appeal

(People v. Bearden, supra; People v. Angelo, supra, People

v. Eckert, supra; People v. Decina [1956] 2 N.Y. 2d 133),

and sometimes by way of a motion to inspect the Grand

Jury minutes (People v. Curnuch [Co. Ct. Kings Co. 1941],

177 Misc. 606; People v. Carlson [Co. Ct. Kings Co. 1941],

176 Misc. 230). It is very well settled, however, that

“Under a given state of facts, whether negligence is culp-

able is a question of judgment. Ordinarily for the judg-

ment of the jury, as is the question whether negligence

exists at all” (People v. Angelo, supra, p. 457).

New Penal Law

The crime of Manslaughter in the Second Degree, in-

sofar as here important, is now defined in § 125.15 as

follows:

„A person is guilty of manslaughter in the second

degree when: (1) he recklessly causes the death of

another person.”

Section 15.05 is the definition section and subdivision 3

defines “Recklessly” as follows:

“A person acts recklessly with respect to a result

or to a circumstance described by a statute defining

an offense when he is aware of and consciously dis-

regards a substantial and unjustifiable risk that

such result will occur or that such circumstance

exists. The risk must be of such nature and degree

that disregard thereof constitutes a gross deviation

from the standard of conduct that a reasonable per-

son would observe in the situation. A person who

creates such a risk but is unaware thereof solely by

reason of voluntary intoxication also acts recklessly

with respect thereto.”

It is clearly apparent from the words of the revisors

themselves that the criminally negligent homicide previ-

ously punished under 5 1053-a is now identified as a “reck-

lessly” caused death punished as Manslaughter Second

Degree (125.15). This conclusion is fortified by the fol-

lowing language:

“Although the judicial construction thereof

{culpable negligence] was not very precise, it would

appear to be closer to the revised Penal Law’s con-

cept of recklessness than to its concept of ‘criminal

negligence.’ ”

Section 125.10 entitled “Criminally Negligent Homi-

cide” reads as folows:

“A person is guilty of criminally negligent homi-

cide when, with criminal negligence, he causes the

death of another person.”

Turning back to the definition section, 15.05, we note

that “criminal negligence” is defined as follows in subd. 4:

P

25

“A person acts with criminal negligence with

respect to a result or to a circumstance described by

a statute defining an offense when he fails to per-

ceive a substantial and unjustifiable risk that such

result will occur or that such circumstance exists.

The risk must be of such nature and degree t hat

the failure to perceive it constitutes a gross devia-

tion from the standard of care that a reasonable

person would observe in the situation.”

According to the commentaries, “This offense must be

regarded as at least partially new as indicated in previous

definition provisions * , ‘criminal negligence’ is in a

sense a lower form or degree of recklessness. Though

defining many offenses based upon the culpable mental

state of recklessness, the revised Penal Law contains only

two which are satisfied by ‘criminal negligence’ * * *.”

“It is probable that the former Penal Law presented

no crime truly equivalent to the instant one. This is so

despite one general homicide offense of ‘culpable negli-

gence’, designated second degree manslaughter * and

a host of miscellaneous homicide offenses of the negli-

gence genus, some designated manslaughter and others

separately defined, dealing with specific conduct of one

sort or another * * *.”

In making the choice whether to proceed in an automo-

bile accident case where death results under Manslaughter

Second Degree (125.15), or a criminally negligent homicide

(125.10), the Revisor’s Notes under 15.05 are most helpful.

“Conceptually more intricate are the terms ‘reck-

lessly’ (subd. 3) and ‘criminal negligence’ (subd. 4),

which are designed to crystalize an area of culpabil-

ity long fraught with uncertainty. The common

denominators of these two terms are that the under-

26

lying conduct must, in each instance, involve (1) ‘a

substantial and unjustifiable risk’ that a result or

circumstance described by a penal statute will occur

or exists, as the case may be, and (2) ‘a gross devia-

tion’ from the standard of conduct or care that a

reasonable person would observe. The reckless of-

fender is aware of that risk and ‘consciously disre-

gards’ it (subd. 3). The criminally negligent of-

fender, on the other hand, is not aware of the risk

created (subd. 4) and, hence, cannot be guilty of

consciously disregarding it. His liability stems from

a culpable failure to perceive it. His culpability,

though obviously less than that of the reckless of-

fender, is appreciably greater than that required for

ordinary civil negligence by virtue of the ‘substantial

and unjustifiable’ character of the risk involved and

the factor of ‘gross deviation’ from the ordinary

standard of care.

It is important to observe that, despite an appar-

ent mutual exclusiveness, as between recklessness

and criminal negligence, a person may, in one situa-

tion at least, act with both forms of culpability. By

express provision, one who with criminal negligence

fails to perceive the indicated risk created by him

also acts ‘recklessly’ if his unawareness or failure

of perception results solely from ‘voluntary intoxi-

cation’ (subd. 3). This proposition is not as arti-

ficial as it might appear on the surface. It may be

illustrated by considering the driver of a car who

stops at a bar, drinks heavily, continues on his way

and then runs over a pedestrian whom he fails to see

in his intoxicated condition and whom he undoubt-

edly would have seen had he been sober. Here, his

culpability goes well beyond his failure of perception

Se

27

at the time of the accident. By getting drunk in the

course of his automobile trip, he consciously disre-

garded a substantial and unjustifiable risk of acci-

dent and, hence, in the overall setting he acted ‘reck-

lessly (subd. 3).“

It is perfectly clear why the Legislature has wisely

carved out a completely new category to govern the large

number of homicides resulting from automobile accidents

not previously punishable as culpable negligence under the

former law.

The increasing number of highway deaths related to

alcohol has justly caught the attention of our State Legisla-

ture which, during recent times, has sought to eradicate the

drunk driver from our highways. Thus, according to one

newspaper, the National Safety Council reported to the

U.S. Department of Transportation that for the year 1970

there were approximately 55,000 traffic deaths nationwide

and over 50 percent thereof were alcohol related.*

An examination of the changes and amendments to

Sections 1192-1194 of the Vehicle & Traffic Law further

establishes the trend and intent of the Legislature to reduce

the large number of homicides resulting from automobile

accidents (see L. 1959, c. 775 amended L. 1960, c. 184, § 1;

L. 1960, c. 749; L. 1961, e. 255; L. 1963, e. 869, 5 1, 2;

* Patrick M. Murphy, Jr., Legislative Counsel to New York State

Sen. John D. Caemmerer. In New York State in 1969, there were

463,334 reportable vehicle accidents occurring in 68,582,000,000 esti-

mated miles travelled (State of New York, 1970, Dept. of Motor

Vehicles, Accident Facts, pp. 9-10). Motor vehicle accidents account

for almost as many deaths in this country as all other categories of

accidents combined (U. S. Dept. of Commerce, Statistical Abstract

of the United States, 1971, p. 58). In 1968 traffic accidents caused

54,862 deaths, an estimated 4,400,000 personal injuries, as well as

huge losses in property damage (id., at pp. 58, 541). (See People

v. Samuel, 29 N.Y. 2nd 252. at 259.)

28

L. 1966, e. 963, § 1; L. 1969, c. 146, eff. Jan. 1, 1970; L. 1970,

e. 275; § 8; amended L. 1971, e. 495, $1, eff. Jan. 1972;

L. 1971, e. 200, eff. Sept. 1, 1971; L. 1970, e. 275, § 4; L.

1971, c. 445, 58 1, 2, eff. Sept. 1, 1971; L. 1971, e. 928, eff.

Jan. 1, 1972).

A comparison of the most recent amendments reveals

the Legislature has been reducing the percent of alcohol

required to convict.

Appellant has been convicted not of Manslaughter 2nd

Degree for recklessly causing the deaths of Richard Lucey

and Margaret Gribben, as he might have been, but the less

serious offense in that he failed to “perceive the substan-

tial and unjustifiable risk to himself and to others” when

he drove wildly about this four-lane road for a distance of

two miles while obviously under the influence of liquor.

The proof is clear and convincing that Kealey did not

know what he was doing from the time he left Hickey’s

Shell Gas Station and entered the Bayville Road until the

accident more than two miles away.

During this time, his operation of a motor vehicle was

a serious danger, not only to himself but to others on the

highway, as clearly shown by the testimony of Messrs.

Simone, Hendrickson, Schultz and Peiffer, who established,

in essence, that Kealey drove from one side of the road

to another, crossing back and forth on this four-lane road,

at a rate of speed that was clearly dangerous under the

circumstances to himself and other users of the thorough-

fare.

Defendant’s erratic driving on the Bayville Road from

Horse Hollow Road to the point of impact, a distance of

2 miles, was clearly established by a number of witnesses.

Thus, Mr. Simone was unshaken in his view that de-

fendant drove over and across all four lanes of the Bayville

—

29

Road (274-79), almost striking a little red car (280-82,

319). Speedwise, Simone estimated he had been traveling

35 to 40 m.p.h. while Kealey was going faster, ever in-

creasing his speed.

Hendrickson also observed the Ford going from north-

bound to southbound lanes and back at speeds of 45 m.p.h.

and greater on a road where Hendrickson believed the

speed limit was either 40 or 45 m.p.h. (343-81).

Reginald Schultz testified he was driving at 40 m.p.h.

and Kealey passed him and another car in a wide sweep,

swerving abruptly and going into one of the opposite

traffic lanes, and almost hitting a car it was about to pass

(390-413).

Mr. Peiffer, while driving between 35-45 m.p.h., was

also passed by defendant’s vehicle and observed it go way

over the double yellow line, and swerve back all the way

to the slow northbound lane (525-46).

Further evidence of defendant’s excessive speed may be

seen in the damage to the rear of the victims’ Chrysler

automobile (as depicted in People’s Exhibits 1 and 7 in

evidence) together with the severe damage to the front end

of the defendant’s vehicle (People’s Exhibit 2 in evidence).

Proof of Kealey’s intoxication and its effect upon his

ability to control his car was clearly established by the

testimony of the foregoing witnesses.

So, too, the testimony of the gas station owner, Mr.

Hickey, relative to the defendant’s loud and belligerent

conduct at the station, the erratic manner in which he

drove his vehicle from the station, the defendant’s blood-

shot eyes, flushed face, and the smell of alcohol emanating

from him was strong evidence of appellant’s intoxication

immediately prior to the accident (641-61).

30

The newspaper publisher, Hawthorne, smelled the heavy

odor of alcohol on the defendant’s breath, and observed

him stagger away from his automobile, being assisted by

two policemen (553-60). The police witnesses at the scene,

Keteltas, Duchnowski and Coruzzi, corroborated the ob-

servations of Mr. Hawthorne (423-36, 437-50).

Sergeant Ferrand also testified the posted speed limit

on the Bayville Road at the scene of the accident was 40

m.p.h., and there was a sign nearby to this effect (465-87).

The risk to not only Mr. Lucy and Mrs. Gribben, as

well as other mtorists on the Bayville Road, was greatly

magnified and amplified by the very nature and character

of the road itself.

The testimonies of Messrs. Simone (276, 306-07, 328),

Hendrickson (342, 348, 376), Schultz (391), Peiffer (538-

39), and Sergeant Ferrand (463-66, 468-69) clearly estab-

lish this 40 foot wide, 4 lane road, without any shoulders,

was dangerous, because the lanes were narrow and also

because the road was bordered by trees immediately con-

tiguous to both northbound and southbound curb lanes on

the highway.

The dangerous character and risk entailed in traversing

this road is clearly depicted in People’s Exhibit 4 in evi-

dence.

Appellant, according to the record, resided within a

block or two of the scene of the accident, and himself testi-

1. Although not introduced at the trial or request for judicial

notice thereof to be taken, Ordinance No. 1 of the Village of Latting-

town in effect, as amended through May 19, 1964, provides a speed

limit of 40 mph on the Bayville Road encompassed in the instant

record, and this court is requested to take judicial notice thereof

pursuant to CPLR 4511 and People v. Zambito [1959] 21 Misc. 2d

815; Richardson on Evidence, 9th Ed. Sec. 21.

|

31

fied to traveling this road at least on the day of the acei-

dent. Can it not be inferred that appellant was most

familiar with this road and, therefore, “aware of * * * a

substantial and unjustifiable risk * * * ” which he con-

sciously disregarded while driving on the Bayville road

(§ 15.05, subd. 3, Penal Law).

It is also readily apparent Kealey’s drinking on this

day caught up with him and prevented him from being

“aware of” the risk or from “perceiving or realizing a

very great danger to himself and others” caused by his

driving, or he would have parked his car by the side of the

road and gone to sleep.

The conclusion is inescapable that the jury found

Kealey’s conduct was such a “gross deviation from the

standard of care that a reasonable person would observe

in the situation” that a guilty verdict was the only one

possible on the evidence.

It is respectfully submitted Kealey was legally, morally,

and criminally liable for the deaths of Richard Lucey and

Margaret Gribben.

In People v. Haney [1972] 30 N.Y. 2d 328, the Court

reviewed § 125.10 and 125.15 dealing with criminally neg-

ligent homicide and manslaughter in the second degree

respectively. Judge Jasen speaking for a unanimous

court concluded as follows (pp. 332-335) :

“The revised Penal Law makes unintended homi-

cide manslaughter in the second degree, whey it is

committed ‘recklessly’ (Penal Law, § 125.15) . and

when committed ‘negligently’, though not recklessly,

it is criminally negligent homicide. (Penal Law,

§ 125.10.)

4. When homicide committed recklessly becomes murder, see

Penal Law, § 125.25 (subd. 2); People v. Poplis (30 N X 2d 85).

32

The distinction between these two crimes is pro-

vided in section 15.05 (subds. 35, 4) of the Penal

Law, which specifically describes the mental state

requisite for each. The reckless offender is aware

of the proscribed risk and ‘consciously disregards’

it, while the criminally negligent offender is not

aware of the risk created and, hence, cannot be

guilty of consciously disregarding it. (Commission

Staff Notes, Gilbert Criminal Code and Penal Law

[1971], supra, at p. 2-248; see, also, discussion in

Gegan, Criminal Homicide in the Revised New York

Penal Law, 12 N.Y.L.F. 565, 578-579; Schwartz,

Penal Law, Twelfth Annual Report of N. Y. Judicial

Conference [1967], p. 109.) Since the criminally

negligent offender’s liability arises only from a

culpable failure to perceive the risk, his culpability

is obviously less than that of the reckless offender

who consciously disregards the risk. (See Model

Penal Code, Tent. Draft No. 9 [May 8, 1959],

§ 201.4, at p. 53.) It is, however, ‘appreciably

greater than that required for ordinary civil negli-

gence by virtue of the “substantial and unjustifi-

able” character of the risk involved and the factor

of “gross deviation” from the ordinary standard of

care.’ (Commission Staff Notes, Gilbert Criminal

Code and Penal Law [1971], supra, p. 2-248; ef.

5. 8 15.05 Culpability; definitions of culpable mental states.

* * * 3. Recklessly.“ A person acts recklessly with respect to a

result or to a circumstance described by a statute defining an offense

when he is aware of and consciously disregards a substantial and

unjustifiable risk that such result will occur or that such circum-

stance exists. The risk must be of such nature and degree that dis-

regard thereof constitutes a gross deviation from the standard of

conduct that a reasonable person would observe in the situation.”

6. Criminally negligent homicide is a Class E felony, whereas

manslaughter in the second degree is a Class C felony.

33

Prosser, Law of Torts [4th ed.], § 31; Restatement,

Torts, § 282.) 7

Enactment of section 125.10 represents a marked

change from prior law as the former Penal Law con-

tained no crime truly equivalent to it. (Practice

Commentary by Denzer and McQuillan, McKinney’s

Cons. Laws of N. Y., Book 39, Penal Law, § 125.10,

at pp. 224-225.) The present law lacks the moral

implication of murder (Penal Law, § 125.25) or

manslaughter in the first or second degree (Penal

Law, §4§ 125.15, 125.20), each of which involves

awareness of the harm which will (or in some degree

probably will) result from the offender’s conduct.

Criminally negligent homicide, in essence, involves

the failure to perceive the risk in a situation where

the offender has a legal duty of awareness. It, thus,

serves to provide an offense applicable to conduct

which is obviously socially undesirable.“ [It pro-

7. Criminal liability for death caused by ordinary negligence is

sometimes imposed by statute. It should be noted that most of these

statutes are confined to deaths arising out of automobile accidents.

(See Riesenfeld, Negligent Homicide, A Study in Statutory Inter-

pretation, 25 Cal. L. Rev. 1; Ann. Automobiles—Negligent Homi-

cide, 20 ALR 3d 473; 3 Wharton, Criminal Law and Procedure

[R. Anderson ed.], §976.} For an example of ordinary negligence,

sufficient to establish liability for a nonvehicular homicide, see People

v. Sandgren (302 N.Y. 331), interpreting a paragraph of section 1052

of the former Penal Law.

8. The crime of criminally negligent homicide is one of general

application, encompassing an infinite variety of conduct, which con-

sists both of acts of commission and omission. As the Practice Com-

mentary indicates, its principal utility however, will “doubtless be

the same as that of the former Penal Law’s vehicular homicide crime

(§ 1053-a), the application of which was limited exclusively to

vehicle cases.” It is to be observed, though, that while under both

section 1053-a and section 125.10 ordinary civil negligence is not

sufficient to predicate criminal responsibility, the degree of proof re-

quired to convict under these sections is different. (Commission

Staff Notes, Gilbert Criminal Code and Penal Law [1971], supra,

at p. 2-264.)

scribes] conduct which is inadvertent as to risk only

because the actor is insensitive to the interests and

claims of other persons in society.’ (Model Penal

Code, Tent. Draft No. 9, supra, at p. 53.) The

Legislature, in recognizing such conduct as criminal,

endeavored to stimulate people towards awareness

of the potential consequences of their conduct and

influence them to avoid creating undesirable risks.

(See Wechsler and Michael, A Rationale of the Law

of Homicide, 37 Col. L. Rev. 701, 749-751; 64 Col. L.

Rev. 1469, 1538; Model Penal Code, Tent. Draft

No. 4, supra, at pp. 126-127.) “

What amounts to a violation of this section de-

pends, of course, entirely on the circumstances of the

particular conduct. Whether in those circumstances

the act or acts causing death involved a substantial

and unjustifiable risk, and whether the failure to

perceive it was such as to constitute a gross devia-

tion from the standard of care which a reasonable

man would have observed under the same circum-

stances, are questions that generally must be left

directly to the trier of the facts. In other words,

‘(t]he tribunal must evaluate the actor’s failure of

perception and determine whether, under all the cir-

cumstances, it was serious enough to be condemned.’

(Model Penal Code, Tent. Draft No. 4, supra, at

p. 126; see, also, Moreland, A Re-Examination of the

Law of Homicide in 1971: The Model Penal Code,

59 Ky. L. J. 788, 828.)

While it is difficult to clarify further these ques-

tions (ef. People v. Eckert, 2 N X 2d 126, 130;

9. Compare Hall, Negligent Behavior Should Be Excluded from

Penal Liability, 63 Col. L. Rev. 632; 16 Buff. L. Rev. 749.

— eeeaesasnarenaeeemmanerensimameemmmmeneiaiits

35

People v. Angelo, 246 N. Y. 451, 457), it would seem

sufficiently clear that for proper determination of

these questions, two main considerations should be

emphasized. Firstly, criminal liability cannot be

predicated upon every careless act merely because its

carelessness results in another’s death; and, sec-

ondly, the elements of the crime ‘preclude the proper

condemnation of inadvertent risk creation unless

“the significance of the circumstances of fact would

be apparent to one who shares the community’s gen-

eral sense of right and wrong”.’ (Model Penal

Code, Tent. Draft No. 9, supra, at p. 53, citing Hart,

The Aims of the Criminal Law, 23 Law & Contemp.

Prob. 401, 417.)”

Testing § 125.10 and § 15.05, subd. 4, as interpreted by

the New York State Court of Appeals in Haney leaves no

room for doubt about the meaning of the language in the

statute. The test or standard has been carefully defined

and restricted by the court in Haney so that every motorist

in New York knows he cannot or should not operate a car

under the circumstances proved against petitioner. Coun-

sel’s argument, “ ‘gross deviations’ or the ‘applicable stand-

ard of care’ or ‘what a reasonable man would have ob-

served’” (7) are too uncertain is specious because of the

definition in 5 15.05, subd. 4, and the restrictive interpreta-

tion placed on & 125.10 by the New York Court of Appeals

in Haney. Equally specious is the hypothetical case of the

“thoughtful or engrossed employee leaving his work” (9)

who kills someone driving home. Absent any evidence of

criminality, he would not be guilty in New York, or any

other jurisdiction, of a crime because he was “thoughtful

or engrossed.” The handicapped driver in New York,

though licensed to drive, is not licensed to kill with im-

36

munity (People v. Eckert [1956] 2 N.Y. 2d 126 [epileptics] ;

People v. Decina [1956] 2 N.Y. 2d 188 [epileptics]). It is

unreal to argue that a deaf driver or operator whose hear-

ing has been seriously impaired would be free to drive and

kill in New York without criminal responsibility (see, e.g.

People v. Eckert, supra; People v. Decina, supra). Se-

riously handicapped drivers are under a special duty to

exercise caution less they lose control of their auto and

seriously injure or kill another (supra; Matter of Enos v.

Macduff [4th Dept. 1953] 282 App. Div. 116). The rule

is the same elsewhere in the United States (Anno: Auto-

mobiles—Illness or Drowsiness, 28 ALR 2d 12).

Petitioner is in error when he argues “The constitu-

tionality of the statutes involved, read together, have not

been ruled upon by the courts of the State of New York”

(7).

By order dated December 27, 1973, a motion by peti-

tioner to amend the remittitur was granted as follows:

“Upon appeal herein there was presented and neces-

sarily passed upon the following question under the

Constitution of the United States, viz: Defendant-

appellant argued that he had been denied due process

of law because the statute under which he was con-

victed (Penal Law, § 125.10) is unconstitutionally

vague. The Court of Appeals held that appellant’s

constitutional rights were not violated.”

Moreover, in 1972 Judge Jasen reporting for a unani-

mous court in People v. Haney (80 N.Y. 2d 828) carefully

laid out the requirements for a prima facie case under the

statute. Indirectly, if not directly, Judge Jasen concluded

37

the test or standard in the statute was sufficient. It is

respectfully submitted doubt or uncertainty does not exist

in New York in connection with the requirements to make

out a prima facie case.

CONCLUSION

Certiorari should not be granted.

WILLIAM CAHN

District Attorney

Nassau County

Attorney for Respondent

HENRY P. DEVINE

Assistant Distriet Attorney

of Counsel.

(Indict. No. 26,107)