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Mens Rea Of Recklessness And Sufficiency Of The Evidence


People v. Asaro

New York Court of Appeals

Decided October 22, 2013

21 N.Y.3d 680

Issue: whether defendant’s convictions for manslaughter in the second degree and assault in the second degree, each predicated on the mental state of recklessness, are supported by legally sufficient evidence.

Holding: when viewing the facts, in light most favorable to the People – as the Court must, the Court found that the evidence at trial supported the conviction of manslaughter and supported a finding of a mens rea of recklessness.

Facts: Defendant Patrick Asaro was driving his vehicle with four passengers on a rural two-lane road in Orange County. He suddenly stopped his car, revved the engine and quickly accelerated to speeds far in excess of the posted limit of 55 miles per hour. Ignoring an urgent plea from one of his passengers to slow down, he crossed the double yellow line and struck an oncoming car head-on, instantly killing the driver and injuring the passenger in the other vehicle. As a result, defendant was indicted for manslaughter in the second degree (Penal Law § 125.15 [1]), criminally negligent homicide (Penal Law § 125.10), four counts of assault in the second degree.

 Two witnesses testified that defendant appeared to be intoxicated. After defendant had been at the party for a few hours, Ligenzowski told him that two people needed a lift to the party from the nearby train station in Middletown. Defendant agreed to pick them up.

 Defendant brought his car to a halt in the middle of the road even though there was no reason to stop. He revved the engine, shifted into gear and accelerated quickly.  Ortiz leaned forward to look at the speedometer and saw that the needle was pointing at 130 miles per hour. Ligenzowski testified that he screamed at defendant to slow down but defendant did not respond. Nazario heard Ligenzowski exclaim to defendant to “slow down, we’re about to make the turn.”

The physical evidence established that defendant’s vehicle crossed the double yellow line as it approached the curve entered the opposite lane of traffic, where it collided head-on into a car driven by Brian Stevens. The impact killed Stevens instantly and seriously injured Lindsey Ernst, who had been in the passenger seat of the car. The guests at Adamczyk’s party heard the crash, called 911 and came out to help the survivors. When Adamczyk reached defendant, he heard defendant say “I’m sorry, I only had a few.” The crash victims were all taken to a hospital where a blood sample of defendant was drawn.

A forensic toxicologist testified that she conducted tests on defendant’s blood sample for the presence of alcohol and drugs. The test was negative for alcohol but confirmed the presence of delta-9 tetrahydrocannabinol—the active ingredient in marijuana. A confirmatory test of a separate blood sample by another lab, however, did not detect marijuana in the blood.

A state police expert in the field of collision reconstruction examined the crash site, observing yaw marks crossing the double yellow line from the lane. There were no skid marks suggesting that either car had braked prior to the collision. Based on all the evidence at the scene, the expert concluded that defendant had crossed the double yellow line heading into the curve, causing the accident. In addition, he testified that the calculations he performed to estimate the speed of defendant’s car at the point of impact led him to conclude that defendant was driving at a minimum of 94 miles per hour. On cross-examination, he admitted that the handwritten  notes he had used to make the speed computations were lost while he was on medical leave and he could not replicate the math. As a result of the lost Rosario material, the trial court gave the jury an adverse inference charge.

Legal Analysis: It is well settled that a “verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt”. A sufficiency inquiry obligates a court “to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof”.

The Penal Law defines “recklessly” in relevant part 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 disregards 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 person would observe in the situation” (Penal Law § 15.05 [3]).

He mental states of recklessness and criminal negligence share many similarities. Both require that there be a “substantial and unjustifiable risk” that death or injury will occur;[*5]that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a “gross deviation” from how a reasonable person would act. The only distinction between the two mental states is that recklessness requires that the defendant be “aware of” and “consciously disregard” the risk while criminal negligence is met when the defendant negligently fails to perceive the risk (see People v Boutin, 75 NY2d 692, 696 [1990] [explaining that “the necessary underlying conduct, exclusive of the mental element, is the same”. see People v Boutin, 75 NY2d 692, 696 [1990] [explaining that “the necessary underlying conduct, exclusive of the mental element, is the same” (internal quotation marks, emphasis, brackets and citation omitted)]; People v Montanez, 41 NY2d 53, 56 [1976] [“The defendant’s awareness of the risk determines the degree of culpability”]).

In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires “some additional affirmative act” aside from “driving faster than the posted speed limit” (People v Cabrera, 10 NY3d 370, 377 [2008]). Here, there was ample proof that defendant did more than merely drive faster than the legal limit—indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour. Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed  before crossing the double line into oncoming traffic. Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car. The evidence therefore demonstrated that defendant engaged in conduct exhibiting “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” (Cabrera, 10 NY3d at 377).

Furthermore, the proof was sufficient to support the jury’s conclusion that defendant acted recklessly—by consciously disregarding the risk he created—as opposed to negligently failing to perceive that risk. Defendant was familiar with the curve in the road near Adamczyk’s house, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. Just before the collision, Ligenzowski pleaded with defendant to slow down because they were “about to make the turn.” Taken together, “there was sufficient proof for the jury to find that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that his actions would cause the death of another” (People v Heinsohn, 61 NY2d 855, 856 [1984]). Consequently, defendant’s convictions for second-degree manslaughter and second-degree assault are supported by legally sufficient evidence.

 Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.


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