John M. Braisted, Jr., District Attorney (Philip G. Minardo of counsel), for appellant.

Stanley Neustadter and Robert Kasanof for respondent.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL and GIBSON concur.

[329] JASEN, J.

On this appeal, by the People, the question posed concerns the sufficiency of the evidence before a Grand Jury to support an indictment against the defendant for criminally negligent homicide in violation of section 125.10 of the Penal Law. The charge arose from an automobile accident which resulted in the death of Angela Palazzo, a pedestrian.

[330] The minutes of the Grand Jury contain the following pertinent testimony. The associate medical examiner read from the medical report of the autopsy which revealed the cause of Mrs. Palazzo's death. According to the medical report, it was due to multiple external contusions, fracture of the vertebra and lower extension bleeding in both chest cavities — conditions which, in the opinion of the medical examiner, were brought about by a "very considerable amount of force". An eyewitness to the accident testified that at approximately 6:30 A.M. on April 28, 1968, she observed the deceased step off a city bus that had stopped at the corner of Castleton and Bard Avenues in Staten Island. After the bus had continued on and the signal light turned green in her favor, the deceased started to cross Castleton Avenue at the intersection. While in the middle of the street, she was struck by an oncoming automobile driven by the defendant, Booker W. Haney. The witness added that the car was "some distance away" from the intersection and "coming fast" when she first saw it, and that prior to the moment of impact, she did not hear a horn or the screeching of brakes. Patrolman Thomas Roche of the automobile investigation squad, who conducted the investigation of the accident, stated that the automobile which struck the deceased eventually crashed into a utility pole, causing considerable damage to it. In addition, he said that Mrs. Palazzo's body was located 186 feet west of Bard Avenue, approximately 100 feet in front of the point where the defendant's automobile had finally stopped. His investigation further determined that, based on the lengthy skid marks from the defendant's car, the defendant's car was traveling at least 52 miles per hour at the time it struck the utility pole. Detective John Plohetski testified that after he placed the defendant under arrest, and informed him of his rights, the defendant kept repeating, "I didn't mean to hit her, I didn't mean to hit her."^[1]

[331] The indictment returned against the defendant charged him with criminally negligent homicide "in that, among other things, he drove a vehicle at a high, reckless, dangerous and unlawful rate of speed; in that he failed and neglected to stop said vehicle at the intersection * * * although the traffic signal situated at said intersection was red * * * and did thereby cause the death of the said Angela Palazzo".

The defendant, after pleading not guilty, made a motion for inspection of the Grand Jury minutes. Supreme Court, Criminal Term, granted the motion and dismissed the indictment, holding that "[t]he evidence before the Grand Jury, even though unexplained and uncontradicted, would not * * * justify conviction by a trial jury". (59 Misc 2d 162, 167.) The Appellate Division unanimously affirmed on the opinion at Criminal Term.

Section 125.10 of the Penal Law provides that a person is guilty of the crime of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Subdivision 4 of section 15.05 of the Penal Law defines "Criminal negligence" as follows: "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 perceive 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 the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

It is the People's claim that the indictment was erroneously dismissed since the facts presented to the Grand Jury "fall within" section 125.10. Specifically, it is argued that the statutory test for the support of an indictment was met since the testimony before the Grand Jury would warrant a conviction by a trial jury for criminally negligent homicide. The defendant, on the other hand, urges that the dismissal of the indictment was proper, since the evidence before the Grand Jury established nothing more than ordinary civil negligence on his part, which conduct falls far short of that required to establish the crime of criminally negligent homicide.

A persistent problem, faced by the courts and legislatures alike, has been the formulation of the "extra" qualities that [332] distinguish unintended homicides, which give rise to criminal liability, from those which, at most, produce civil liability for negligence. (See, e.g., Perkins, Criminal Law [1957 ed.], pp. 663-671; Paulsen and Kadish, Criminal Law and Its Processes [1962 ed.], pp. 587-592; Byrn, Homicide Under the Proposed New York Penal Law, 33 Fordham L. Rev. 173, 205-206; Remington and Helstad, The Mental Element in Crime — A Legislative Problem, 1952 Wis. L. Rev. 644, 658-664; Hautamaki, The Element of Mens Rea in Recklessness and "Criminal Negligence", 2 Duke B. J. 55.)^[2] The Model Penal Code (Tent. Draft No. 4 [April 25, 1955], Comments to § 2.02, at p. 128) observes, concerning the judicial and statutory definitions of conduct causing death which is criminal, although unintentional: "Thus under statutes, as at common law, the concept of criminal negligence has been left to judicial definition and the definitions vary greatly in their terms. As Jerome Hall has put it, the `judicial essays run in terms of "wanton and wilful negligence," "gross negligence," and more illuminating yet, "that degree of negligence that is more than the negligence required to impose tort liability." The apex of ambiguity is "wilful, wanton negligence" which suggests a triple contradiction — "negligence" implying inadvertence; "wilful," intention; and "wanton," recklessness.' [Citation omitted.] Much of this confusion is dispelled, in our view, by a clear-cut distinction between recklessness and negligence, in terms of the actor's awareness of the risk involved."

Cognizant of this problem, and in an endeavor to "crystallize [this] area of culpability and liability", the Legislature incorporated in the revised Penal Law the dichotomy proposed by the Model Penal Code. (Commission Staff Notes on the Proposed New York Penal Law, Gilbert Criminal Code and Penal Law [1971], pp. 2-247-2-248.)^[3] Thus, the revised Penal Law [333] makes unintended homicide manslaughter in the second degree, when it is committed "recklessly" (Penal Law, § 125.15)^[4] and when committed "negligently", though not recklessly, it is criminally negligent homicide. (Penal Law, § 125.10.)

The distinction between these two crimes is provided in section 15.05 (subds. 3^[5], 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.)^[6] It is, however, "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." (Commission Staff Notes, Gilbert Criminal Code and Penal Law [1971], supra, p. 2-248; [334] cf. 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 contained 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, §§ 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.^[8] "[It proscribes] 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; [335] 64 Col. L. Rev. 1469, 1538; Model Penal Code, Tent. Draft No. 4, supra, at pp. 126-127.)^[9]

What amounts to a violation of this section depends, 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 deviation from the standard of care which a reasonable man would have observed under the same circumstances, 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 circumstances, 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 questions (cf. People v. Eckert, 2 N Y 2d 126, 130; 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, secondly, 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 general 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.)

Turning to the case before us, upon consideration of the totality of the circumstances surrounding the defendant's conduct, we conclude that the People put forward before the Grand Jury sufficient evidence to "warrant a conviction by the trial jury." (Code Crim. Pro., § 251; People v. Howell, 3 N Y 2d 672; People v. Donahue, 309 N.Y. 6; People v. Nitzberg, 289 N.Y. 523, 526; People v. Sweeney, 213 N.Y. 37, 42; People v. Glen, 173 N.Y. 395, 400.) In other words, the evidence presented to the Grand [336] Jury was the equivalent of prima facie proof that the crime charged had been committed by the defendant. (See, e.g., People v. D'Angelo, 29 N Y 2d 599; People v. Peetz, 7 N Y 2d 147; People v. Wess, 32 A D 2d 972, affd. 27 N Y 2d 933.)^[10]

The evidence discloses that Mrs. Palazzo was struck by the defendant's car while crossing Castleton Avenue at the intersection of Castleton and Bard Avenues with the traffic signal green in her favor. At the time she was struck, Mrs. Palazzo was half-way across Castleton Avenue. The evidence also indicates that the defendant failed to obey the red traffic signal at the intersection of Castleton and Bard Avenues and stop his motor vehicle, as required by law, before proceeding through the intersection. Additionally, there is evidence that he was traveling at a high rate of speed (approximately 52 mph) just before and at impact. Furthermore, no visual obstruction to the sighting of Mrs. Palazzo, lawfully crossing at the intersection, was apparent. It should be abundantly clear that such conduct cannot be characterized as mere carelessness, sufficient only to establish liability for ordinary civil negligence. Rather, from this evidence, and the reasonable inferences to be drawn therefrom, a jury could find the defendant guilty of criminally negligent homicide.^[11] Indeed, by no means can it be said that the evidence fell short of the quantum and standard of proof demanded by section 251 of the Code of Criminal Procedure. To hold otherwise, and excuse the flagrant disregard manifested here, would sanction conduct at which the statute was clearly aimed, and, in effect, abolish the crime of criminally negligent homicide in all homicides resulting from a misuse of a motor vehicle.

Accordingly, the order appealed from should be reversed, and the indictment reinstated.

Order reversed, etc.

[1] Additional testimony was elicited from a friend of the defendant, who was in the car at the time of the accident. He testified that at about five o'clock that morning, the defendant entered Magnificent Men's Social Club. While the witness admitted that he himself had been drinking at the club, he stated that he did not see the defendant "touch anything". The witness, however, was unable to relate anything about the accident since he was asleep in the defendant's car at the time.

[2] See, also, for extensive discussion, 1937 Report of N. Y. Law Rev. Comm. (Communication to the Legislature Relating to Homicide), N. Y. Legis. Doc., 1937, No. 65, at pp. 517-869; Moreland, A Rationale of Criminal Negligence, 32 Ky. L. J. 1.

[3] Other jurisdictions have adopted this statutory scheme. (See, e.g., Ill. Ann. Stat., ch. 38, §§ 4-6, 4-7; Wis. Stat. Ann., §§ 940.06, 940.08; see, also, Prop. Mich. Rev. Crim. Code, §§ 305[c], 305[d] [Final Draft, 1967]; Study Draft, Federal Criminal Code [June, 1970], § 302.)

[4] When homicide committed recklessly becomes murder, see Penal Law, § 125.25 (subd. 2); People v. Poplis (30 N Y 2d 85).

[5] "§ 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 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."

[6] Criminally negligent homicide is a Class E felony, whereas manslaughter in the second degree is a Class C felony.

[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 Interpretation, 25 Cal. L. Rev. 1; Ann. Automobiles — Negligent Homicide, 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 consists both of acts of commission and omission. As the Practice Commentary 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 required to convict under these sections is different. (Commission Staff Notes, Gilbert Criminal Code and Penal Law [1971], supra, at p. 2-264.)

[9] Compare Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 Col. L. Rev. 632; 16 Buff. L. Rev. 749.

[10] In this regard, it must be observed that it is the Grand Jury which is the arbiter of the credibility and the weight to be given to the evidence. As we wrote in People v. Eckert (2 N Y 2d 126, 129): "That a trial jury might not convict on this evidence is not our concern. The Legislature has specifically relegated the question of whether a trial jury would return a conviction on this evidence to the judgment of the Grand Jury". (See, also, People v. Howell, 3 A D 2d 153, 161 n. [BREITEL, J.], affd. 3 N Y 2d 672; People v. Vaccarella, 257 App. Div. 461; People v. Bob, 233 App. Div. 94.)

[11] We do not determine whether any one aspect of the defendant's conduct would in and of itself suffice to establish criminally negligent homicide.

David H. Pentkowski for appellant.

David A. Wait, District Attorney, for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA concur.

[694] HANCOCK, JR., J.

The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide. Here, because the evidence of defendant's conduct proved only that he did not see the vehicle ahead, the conviction should be reversed and the indictment dismissed.

On the night of November 26, 1985, defendant was driving a truck southbound in the right-hand lane of Interstate 87, commonly known as the Adirondack Northway. The night was overcast and dark, the weather was rainy with fog, and the pavement was slushy and wet. One hundred and fifty miles from the Canadian border, a marked police car, with emergency lights flashing, was stopped with all four tires in the right-hand lane behind a disabled tractor trailer, which also extended onto the roadway approximately six feet. Defendant's truck hit the police car. Both the State Trooper and the driver of the disabled vehicle who was seated with him inside the police vehicle were killed. At the scene, defendant told police he had not seen the flashing lights. The passenger in defendant's truck said the same thing at trial.

The People presented several witnesses who had driven by and seen the police vehicle or its lights that night; five of them who had passed the police car, however, mistakenly perceived it to be on the shoulder of the roadway rather than in the right lane. The People also presented an expert who [695] opined that defendant had not applied the brakes prior to the collision and that defendant's truck was traveling between 60 and 65 miles per hour. The expert's testimony at the Grand Jury, however, was that defendant's speed was between 50 and 60, and defendant's passenger testified at trial that the speedometer, just before the accident, was reading between 40 and 50 — defendant's average speed from the Canadian border. The passenger also testified that defendant was looking ahead and carrying on a conversation, and that defendant stepped on the brakes approximately 200 feet before impact with the police car which neither of them had previously seen.

During two days of deliberations, the jury, on three separate occasions, informed the court that it was unable to reach a verdict; each time the court instructed the jurors to continue. The jury also requested reinstruction, three different times, on the elements constituting criminally negligent homicide; each time the court reread its charge. Ultimately, the jury found defendant guilty of the two charged counts of criminally negligent homicide; County Court denied defendant's motion to set aside the verdict.

On appeal, the Appellate Division affirmed the conviction, stating that, "[t]his case, when all circumstances are weighed, leaves unanswered the question of how this defendant * * * failed to perceive the blaze of emergency lights ahead." (146 AD2d 872, 873-874.) The court considered the "most telling evidence against defendant" to be "that neither he nor [his passenger] ever observed the lights ahead." (Id., at 874.) It concluded that "[t]here simply is no excuse for such failure on defendant's part." (Id.) We now reverse.

Under section 125.10 of the Penal Law, "[a] person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person." As defined in section 15.05 (4) of the Penal Law, "criminal negligence" with respect to a certain result is the "fail[ure] to perceive a substantial and unjustifiable risk that such result will occur". Moreover, the "risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

Our decisions construing these provisions have emphasized that criminal liability cannot be predicated on every act of carelessness resulting in death, that the carelessness required for criminal negligence is appreciably more serious than that [696] for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community's general sense of right and wrong (see, People v Haney, 30 N.Y.2d 328, 333, 335; see also, People v Ricardo B., 73 N.Y.2d 228, 235-236; People v Montanez, 41 N.Y.2d 53, 56). What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been "substantial and unjustifiable", and the failure to perceive that risk must have been a "gross deviation" from reasonable care.

As we explained in People v Haney (supra), the crime of criminally negligent homicide "serves to provide an offense applicable to conduct which is obviously socially undesirable. `[It proscribes] conduct which is inadvertent as to risk only because the actor is insensitive to the interests and claims of other persons in society.' * * * 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." (30 NY2d, at 334 [emphasis added] [citations and n omitted].)

As we have noted in our decisions comparing criminally negligent homicide with reckless manslaughter (Penal Law § 125.15 [1]), the necessary "underlying conduct, exclusive of the mental element, [is] the same." (People v Stanfield, 36 N.Y.2d 467, 470 [emphasis added].) Both felonies require a "risk of death inherent in [the defendant's] act" (People v Montanez, supra, at 56 [emphasis added]). In criminally negligent homicide, no less than in reckless manslaughter, some culpable "risk creation" is essential (People v Stanfield, supra, at 472 [emphasis added]; see also, People v Ricardo B., supra, at 236 ["inadvertent risk created by the conduct"]; People v Haney, supra, at 335 ["inadvertent risk creation"]). Hence, unless a defendant has engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of death, he has not committed the crime of criminally negligent homicide; his "nonperception" of a risk, even if death results, is not enough. This is well illustrated in cases where this court has held the People's evidence sufficient to support a conviction.

In People v Haney (supra), for example, the defendant's [697] automobile struck and killed a pedestrian who had just stepped off a city bus and was crossing the street, at an intersection, with a green light in her favor. In reinstating an indictment which the courts below had dismissed, we pointed to the Grand Jury evidence of the defendant's blameworthy, risk-creating conduct: defendant had failed to obey a red traffic signal and he was traveling at an unlawfully high rate of speed. Defendant's conduct could not, we concluded, "be characterized as mere carelessness, sufficient only to establish liability for ordinary civil negligence." (30 NY2d, at 336.) In People v Soto (44 N.Y.2d 683), this court upheld the conviction of a defendant whose car collided with a vehicle stopped at a traffic signal, thus destroying the vehicle and killing its driver. We based our decision on the trial testimony establishing that the defendant had been driving at an excessive rate of speed, on a moderately traveled city street, while engaged in a "drag race".

Similarly, in People v Ricardo B. (supra), we rejected defendant's contention that the evidence was legally insufficient. There was testimony in that case that defendant was traveling between 70 to 90 miles per hour, on a busy metropolitan road, through an intersection which the victim's automobile had just crossed with a green light in its favor, and was racing side-by-side with another when both their vehicles struck the victim. The facts in People v Paul V. S. (75 N.Y.2d 944 [decided today]) also point up the distinction. There, the proof established that defendant drove at excessive speed (at least 90 miles per hour in a 55 miles per hour speed zone), accelerated after being warned by his passenger to slow down, continued past a line of cars which the police had stopped and ultimately struck a State Trooper. In Paul V. S. and Ricardo B., as in Soto and Haney, the evidence established not only "nonperception" of a risk, but also that the risk was wrongfully "created by [defendant's] conduct" (73 NY2d, at 236).

In the present case, there is no question that defendant's failure to see the vehicle stopped in the lane ahead of him resulted in the fatal accident. That failure may well constitute civil negligence. But the proof does not establish criminal negligence. As contrasted with Paul V. S., Ricardo B., Soto and Haney, the evidence does not show that defendant was engaged in any criminally culpable risk-creating conduct — e.g., dangerous speeding, racing, failure to obey traffic signals, or any other misconduct that created or contributed to a [698] "substantial and unjustifiable" risk of death. Rather, it establishes only that defendant inexplicably failed to see the vehicle until he was so close that he could not prevent the collision. Though it resulted in two tragic deaths, that unexplained failure, without more, does not constitute criminally negligent homicide.

Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed.

Order reversed, etc.

Joseph R. Brennan, Queensbury, for defendant.

Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for plaintiff.

[1044] OPINION OF THE COURT

RICHARD B. MEYER, J.

Motion by the defendant pursuant to CPL 330.30 to set aside the jury verdict rendered at trial on May 25, 2010 convicting him of criminally negligent homicide (Penal Law § 125.10), a class E felony. Specifically, the defendant asserts, as a matter of law, that the trial evidence was not legally sufficient to establish the defendant's guilt beyond a reasonable doubt as to the element of criminal negligence, and that the verdict was against the weight of the evidence.

The authority of a trial court to set aside a verdict in a criminal case is more limited than that of an intermediate appellate court on direct appeal (compare CPL 330.30, with CPL 470.15; see People v Carter, 63 NY2d 530 [1984] [trial court limited to grounds in CPL 330.30]; People v Carthrens, 171 AD2d 387, 391-392 [1991]; People v Ponnapula, 229 AD2d 257 [1997]).

"The grounds upon which a trial court may set aside a jury verdict before sentence are limited to those set forth in CPL 330.30 (People v Carter, 63 NY2d 530). These include cases where reversal or modification would be required on appeal as a matter of law, where the verdict is tainted by improper jury conduct, or where new evidence has been discovered since the trial which could not have been produced by defendant at the trial even with due diligence and which is of such character as to create a probability that had it been received the verdict would have been more favorable to the defendant" (People v Carthrens at 391).

When a defendant's motion asserts that there are issues of law which "would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL 330.30 [1]), the trial court is restricted to determining whether the trial evidence, when viewed in the light most favorable to the People (People v Contes, 60 NY2d 620 [1983]; People v Hobot, 200 AD2d 586 [1994]), was legally sufficient to establish the defendant's guilt of the offense for which he was convicted (see People v Garcia, 237 AD2d 42, lv granted 91 NY2d 972 [1998], revd 93 NY2d 42 [1999], on remand 272 AD2d 189 [2000], lv denied 95 NY2d 889 [2000]). The trial court is not empowered to set aside the verdict as against the weight of the evidence, but instead must determine only "whether there is any valid line of reasoning and permissible inferences which could lead a [1045] rational person to the conclusion reached by the jury on the basis of the evidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987]) in order to uphold the verdict (see also People v Hampton, 64 AD3d 872, 874 [2009]).

"`The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond a reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge's function is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond reasonable doubt within the fair operation of a reasonable mind'" (People v Jackson, 65 NY2d 265, 271 [1985], quoting Curley v United States, 160 F2d 229, 232 [1947], cert denied 331 US 837 [1947], reh denied 331 US 869 [1947]).

Here, a review of the trial record in the light most favorable to the People reveals that there was legally sufficient evidence to establish the defendant's guilt. The facts of the case were relatively undisputed, particularly because the defendant, as the only living witness, not only gave written statements to law enforcement but he testified both before the grand jury and at trial. The defendant was convicted of killing a member of his four-person deer-hunting party, all of whom were wearing camouflage and no hunter orange, on November 15, 2008. The defendant and the decedent had known each other and previously hunted together for many years. The defendant was equipped with a New England Arms .243 caliber single-shot rifle loaded with ammunition having a muzzle velocity of 3,860 feet per second. Following an unsuccessful drive that morning in a wooded area in the Town of Keene, Essex County, the hunting party moved to a different area nearby. The defendant and his brother, both of whom had acted as drivers on the first drive, now acted as the watchers, stationing themselves at separate locations. Meanwhile, they waited for the decedent and the fourth member of the party to walk through the woods from distant locations towards them in the hope that deer would be driven in their direction so that the defendant or his brother could shoot and kill one or more deer. The weather conditions were fog and misty rain, and the defendant was positioned in an area which was partially open, with the remaining topography consisting of thick brush and trees. After what the defendant estimated was approximately five minutes—much too soon, he [1046] thought, for the drivers to be in the area because the drivers had indicated they would not start their drive for 15 minutes—he observed a six- or eight-point male deer walking towards him. He elected not to shoot because it was a difficult shot since the deer was walking directly towards him. He watched the deer through the scope of his rifle for approximately 20 to 30 seconds until it disappeared in an area of thick brush near a downed log. After three to five minutes, he saw what he described as the back of the deer's head through a small opening in the thick brush. While crouching, and with the barrel of his rifle situated approximately three feet off the ground, the defendant fired and the deer disappeared. Believing he had struck the animal, the defendant waited a few minutes and then walked to the area where he expected the deer to be. Upon arrival, he observed the decedent on the ground at a location approximately 156 feet from where the defendant had discharged his weapon.

The defendant challenges the legal sufficiency of the evidence, in substantial part, because of deficiencies in the methods employed by crime scene investigators—no instruments were used to determine elevations, courses or distances other than a 300-foot flexible measuring tape which the investigators stretched as tightly as possible—and the existence of a bullet mark in a 1½-inch sapling tree, at a point six feet eight inches above the ground, located approximately 52 feet away from where the decedent's body was found and approximately 104 feet from where the defendant discharged his rifle. According to the defendant, these deficiencies and the bullet mark, as well as the uncontradicted evidence that the barrel of his rifle was only about three feet off the ground when fired, cast significant doubt on the investigators' testimony that the bullet traveled in a straight trajectory between the defendant and the decedent. Furthermore, the defendant contended that the location of the bullet mark and the decedent's height of six feet could only mean that the trajectory of the fatal bullet had been redirected by the tree before striking and killing the decedent. This conclusion was conceded by the pathologist who performed the autopsy because the bullet did not exit the decedent's head after striking him, thereby indicating that the bullet lacked sufficient speed at the time of impact as the result of striking some other object along the way. This evidence, says the defendant, negates as a matter of law any finding of a gross deviation from the standard of care that a reasonable person would have observed under these circumstances.

[1047] "A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person" (Penal Law § 125.10). "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 perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists" and "[t]he risk [is] of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation" (Penal Law § 15.05 [4]).

"[A] long `distance separates the negligence which renders one criminally liable from that which establishes civil liability' (People v Rosenheimer, 209 NY 115, 123)" (People v Montanez, 41 NY2d 53, 56 [1976]; see also People v Conway, 6 NY3d 869, 872 [2006]).

"[T]he carelessness must be such that its seriousness would be apparent to anyone who shares the community's general sense of right and wrong (see, People v Haney, 30 NY2d 328, 333, 335; see also, People v Ricardo B., 73 NY2d 228, 235-236; People v Montanez, 41 NY2d 53). What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been `substantial and unjustifiable', and the failure to perceive that risk must have been a `gross deviation' from reasonable care" (People v Boutin, 75 NY2d 692, 696 [1990]).

The mere "`nonperception' of a risk, even if death results, is not enough" (id. at 696; see also People v Cabrera, 10 NY3d 370 [2008]; People v Conway, 6 NY3d 869 [2006]).

"[S]o long as the evidence at trial establishes `any valid line of reasoning and permissible inferences [that] could lead a rational person' to convict, then the conviction survives sufficiency review (People v Williams, 84 NY2d 925, 926 [1994])" (People v Santi, 3 NY3d 234, 246 [2004]). It was well within the province of the jury to determine, based upon the evidence at trial, that the defendant's discharge of his high-powered rifle at the back of the head of a deer visible in a small opening in thick brush under foggy, rainy conditions constituted criminal negligence. This is particularly so because the defendant testified [1048] that he discharged his firearm into an area which he described as "thick brush" and trees, at what he thought was the back of the head of a deer—a relatively small target, to be sure—at a time when he did not know where his camouflaged companions were situated.

"Some of the very factors upon which the defendant relies to exonerate himself of criminal negligence actually tend to support the conviction. The defendant knew that his companion was . . . dressed in camouflage clothing . . ., so attired to conceal his presence. The defendant was fully aware that the thickness of the foliage would render a person so attired still more obscure" (Cable v Commonwealth, 243 Va 236, 241, 415 SE2d 218, 221 [1992];^[1]see also State v DeSoto, 6 So 3d 141 [2009]^[2]).

By firing his rifle into an area of trees and thick brush, the jury could have reasonably concluded that the defendant failed to perceive the risk that the bullet could be misdirected upon striking one or more branches or saplings located between him and his intended target and thereby strike one of his unseen camouflaged companions in the vicinity, causing their death. A rational jury could also have concluded that the defendant's observation of a deer was an indication that the drive was both well underway and working, thereby placing one or both drivers in the immediate vicinity, and that the defendant, as an experienced hunter, should have recognized that possibility as well as the substantial and unjustifiable risk of death that existed to the drivers were he to discharge his weapon without first ascertaining their location vis-à-vis the deer. The defendant, "as a hunter, had a duty to properly identify his target and everything in the area prior to firing his firearm" (Lawson v Commonwealth, 35 Va App 610, 620, 547 SE2d 513, 518 [2001]). Furthermore, it was reasonable for the jury to have decided that if it was too difficult a shot for the defendant to make when the deer was walking towards him, at which time the [1049] deer's chest was visible, then it was an equally, if not more, difficult shot when only the back of the deer's head was visible through a small opening in the brush and trees. Thus, even under the defendant's proffered version of events, the jury could have reasonably concluded that the defendant was guilty of criminal negligence in the death of the decedent.

It is within the broad scope of reasonableness accorded to a fair-minded jury that the defendant's conduct here, under the circumstances presented by the evidence, was determined to constitute carelessness so "serious[ly] blameworth[y]" (People v Cabrera at 377) as to "be apparent to anyone who shares the community's general sense of right and wrong" (People v Boutin at 696 [citations omitted]). "[A]fter viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [acts alleged] beyond a reasonable doubt" (People v Santi, 3 NY3d 234, 246 [2004], quoting Jackson v Virginia, 443 US 307, 319 [1979]). The defendant's motion is thus denied in all respects.

[1] Under Virginia law, "[a] person who is criminally negligent in omitting to perform a duty is guilty of involuntary manslaughter, although no malice is shown. Davis v. Commonwealth, 230 Va. 201, 205, 335 S.E.2d 375, 378 (1985)." (Cable v Commonwealth, 243 Va 236, 241, 415 SE2d 218, 221 [1992].)

[2] In Louisiana, a person is guilty of "negligent homicide" when a human being is killed "by criminal negligence" (La Rev Stat Ann § 14:32 [A] [1]), the latter term being defined as "such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances" (La Rev Stat Ann § 14:12).

Stein, Spain and McCarthy, JJ., concur.

[1376] Rose, J.P.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered July 18, 2011, upon a verdict convicting defendant of the crime of criminally negligent homicide (two counts).

Defendant was the front-seat passenger in a vehicle pursuing another vehicle at high speed and close range on a four-lane, limited access highway. When the two vehicles began to travel alongside each other, defendant grabbed the steering wheel and jerked it toward the other vehicle. The other vehicle escaped unscathed, but defendant's vehicle struck the guardrail, causing a one-car accident that obstructed one of the two westbound lanes. As oncoming westbound traffic negotiated the accident scene, it slowed and backed up. Approximately 30 minutes later and half a mile behind the scene of the original accident, a second and third accident occurred. One of the vehicles involved in the third accident — a five-car chain-reaction collision — caught fire and the gas tank exploded, resulting in the deaths of the two occupants. Based upon these deaths, defendant was charged with reckless endangerment in the first degree and two counts of criminally negligent homicide. A jury acquitted defendant of reckless endangerment, but convicted him of the criminally negligent homicide counts. County Court then sentenced defendant as a second felony offender to two concurrent prison sentences of 2 to 4 years, and he now appeals.

We are persuaded by defendant's argument that, even if his conduct rose to the level of criminal negligence (see Penal Law § 15.05 [4]), it cannot be considered to be a sufficiently direct cause of the victims' deaths so as to hold him criminally responsible (see Penal Law § 125.10).^[1] We reach this conclusion after a careful review of the proof of the element of causation, beginning with the initial accident. The evidence at trial establishes that defendant caused the vehicle in which he was a passenger to crash into the guardrail of a bridge carrying the two westbound lanes of the highway over a river. The disabled vehicle then blocked the right-hand lane, reducing traffic in the area of the accident to one lane. Police responded to the scene, set up flares and called for a tow truck and for the Department of Transportation (hereinafter DOT) to respond. Some 30 minutes after the original accident, while still waiting for a tow [1377] truck, traffic had backed up almost half a mile to the east when the second accident occurred. The driver of a minivan approached the backed-up traffic at a high rate of speed while distractedly tuning his radio. He slammed on his brakes, his minivan skidded out of control and hit a guardrail, and it eventually came to rest on the right-hand shoulder of the highway facing in the wrong direction. A DOT truck responding to the initial accident came upon the minivan, pulled over and activated its lights to warn motorists of the second accident. Within minutes of the second accident and approximately 20 to 30 feet away, the third accident occurred when the driver of the first of the five vehicles involved changed lanes in an attempt to avoid the DOT truck, rear-ending the second vehicle in this chain-reaction collision. The first vehicle was then rear-ended by a third vehicle, pushing the second vehicle forward into a fourth vehicle which, in turn, was pushed forward into a fifth vehicle. The force of these collisions caused the gas tank in the second vehicle to rupture and it then burst into flames, killing the driver and her daughter.

In determining whether defendant's conduct in causing the first accident can be considered to be a cause of the victims' deaths so as to impose criminal liability, we employ a two-step analysis. The first step is to examine whether defendant's conduct set in motion the events that led to the victims' deaths (see People v DaCosta, 6 NY3d 181, 185 [2006]; People v Matos, 83 NY2d 509, 511 [1994]). We agree with County Court's observation that this "but for" determination is easily reached here. Absent the initial accident caused by defendant, traffic would not have slowed down and there would have been no occasion for the subsequent accidents.

The second step of our analysis is more difficult. It requires a finding that defendant's conduct was a "`sufficiently direct cause of the ensuing death[s]'" (People v Stewart, 40 NY2d 692, 697 [1976] [emphasis omitted], quoting People v Kibbe, 35 NY2d 407, 413 [1974]). "[A]n act `qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen'" (People v DaCosta, 6 NY3d at 184, quoting People v Matos, 83 NY2d at 511). A connection between the conduct and the death that is obscure or "merely probable" will not suffice (People v Phippen, 232 AD2d 790, 791 [1996] [internal quotation marks and citations omitted]). On the other hand, we note that the mere lapse of time will not necessarily serve to break the chain of causation (see e.g. Matter of Anthony M., 63 NY2d 270, 275-276 [1984]; People v Kibbe, 35 NY2d at 410-411). Nor does a defendant's conduct need to be the sole cause of death in [1378] order for criminal responsibility to attach (see People v DaCosta, 6 NY3d at 184; People v Lapan, 289 AD2d 698, 700 [2001], lv denied 97 NY2d 756 [2002]).

The case of People v Kibbe (supra) is instructive. There, the defendants left the victim stranded at the side of a darkened, isolated roadway in the freezing cold without his glasses while he was lightly clothed and visibly intoxicated (id. at 410). Approximately half an hour later, the victim was sitting in the middle of the roadway where he was struck and killed by an oncoming vehicle (id. at 411). In Kibbe, the evidence of causation was found to be sufficiently direct because the victim's death was a directly foreseeable consequence of the defendants' act of abandoning him on the side of the road (id. at 413; see People v Matos, 83 NY2d at 511). Simply put, the defendants' conduct directly involved the victim. The same can be said for cases where a robbery or burglary of a victim leads to a heart attack that causes the victim's death (see e.g. Matter of Anthony M., 63 NY2d at 276-279), or where a police officer is killed while chasing a fleeing suspect (see e.g. People v DaCosta, 6 NY3d at 184; People v Matos, 83 NY2d at 511).

Here, the People failed to present evidence directly linking defendant's act to the victims' deaths (see People v Stewart, 40 NY2d at 698; People v Phippen, 232 AD2d at 791). Although the accident reconstructionist called as a witness by the People provided an opinion as to the sequence of the five-car collision, he could not estimate the speed of the vehicles involved, he did not attempt to reconstruct the initial accident and he offered no opinion to support the conclusion that the third and fatal accident was a foreseeable result of the initial accident (compare Matter of Anthony M., 63 NY2d at 281; People v Lapan, 289 AD2d at 700-701).

Significantly, were we to consider the circumstances here in a civil tort law context, where the quantum of proof required to establish causation is much less (see People v Warner-Lambert Co., 51 NY2d 295, 306 [1980], cert denied 450 US 1031 [1981]; People v Kibbe, 35 NY2d at 412), defendant's conduct would not be found to be the cause of the victims' deaths. In civil cases involving chain reactions, if traffic is able to avoid a negligently stopped vehicle but subsequent accidents occur, the negligence of the initial vehicle generally will not be considered the proximate cause of the subsequent accidents (see e.g. Daley v Pelzer, 100 AD3d 949, 950-951 [2012]; Ali v Daily Pita Bakeries, Inc., 35 AD3d 330, 331 [2006]; Good v Atkins, 17 AD3d 315, 316 [2005]). Here, there is ample evidence that traffic was slowed and backed up for approximately 30 minutes after the initial accident, [1379] yet vehicles were able to negotiate the accident scene and avoid the disabled vehicle in which defendant had been a passenger. Furthermore, motorists had been warned about the initial accident by law enforcement's placement of flares on the road and there was evidence that the negligence of the drivers involved in the second and third accidents were intervening causes of the events leading to the deaths of the victims.

In short, the evidence here did not establish that defendant's conduct directly involved the two victims so as to impose criminal liability. Given the lack of evidence to support a finding that defendant's conduct was a sufficiently direct cause of the victims' deaths, the charges must be dismissed (see People v Bleakley, 69 NY2d 490, 495 [1987]).

Ordered that the judgment is reversed, on the facts, and indictment dismissed.

[1] Defendant's challenge to the legal sufficiency of the evidence is unpreserved (see People v Lane, 7 NY3d 888, 889 [2006]), however, we necessarily review the sufficiency of the evidence on each element in our review of the weight of the evidence (see People v McCray, 102 AD3d 1000, 1004 n 2 [2013]; People v Newkirk, 75 AD3d 853, 855 [2010], lv denied 16 NY3d 834 [2011]).