Is a criminal defendant's military experience and training considered when determining whether they acted recklessly for the purposes of second degree manslaughter?

§ 125.15. Manslaughter in the second degree

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

2. [Repealed]

3. He intentionally causes or aids another person to commit suicide.

Manslaughter in the second degree is a class C felony.

§ 15.05. Culpability; definitions of culpable mental states

The following definitions are applicable to this chapter:

1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

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. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

4. "Criminal negligence." 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.

According to section 125.15, the defendant would be guilty if he 'recklessly' caused the death. 'Reckless', like other terms defining the 'mental element' of crimes, has long eluded precise legal definition. (Cf. Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288.) Under New York's statute the significant element is Scienter, a showing that defendant was 'aware of and Consciously disregard(ed) a substantial and unjustifiable risk' (Penal Law, § 15.05; emphasis supplied). The jury was justified in finding the requisite cognitive factors here.

Murder in the second degree (Penal Law, § 125.25) and manslaughter in the first degree (Penal Law, § 125.20) require proof of scienter. Manslaughter in the second degree is the reckless causing of the death of another under circumstances wherein the defendant perceives the risk of his act against the victim but recklessly disregards it (Penal Law, § 125.15). It still requires an intentional harming of the victim (see People v. Cruciani, 36 N.Y.2d 304, 367 N.Y.S.2d 758, 327 N.E.2d 803). Even if defendant's intoxication in this case was a factor in his action, his voluntary intoxication constituted reckless conduct so as to cause his action to amount at least to manslaughter in the second degree (Penal Law, § 125.15; § 15.25; see People v. Koerber, 244 N.Y. 147, 151, 155 N.E. 79, 81), which the court charged. He was convicted of manslaughter, first degree.

Reckless endangerment in the first degree is committed when a person, under circumstances evincing a depraved indifference to human life, recklessly creates a grave risk of death to another (Penal Law § 120.25). A person acts recklessly when he is aware of, but disregards, a substantial and unjustifiable risk to the degree that his behavior does not comport with the manner in which a reasonable person would have acted under the circumstances (Penal Law § 15.05). Reckless endangerment

Page 531

is the lowest of three levels of crimes prohibiting reckless conduct. The statutes defining it seek to prevent the risk created by the actor's conduct, not a particular outcome. Thus, unlike reckless conduct which produces death (depraved mind murder; manslaughter) or physical injury (assault), no injury results from reckless endangerment. The risk of injury alone sustains prosecution.

Like higher crimes having recklessness as an element, reckless endangerment is not an intent crime. Instead, determining whether the crime was committed entails "an objective assessment of the degree of risk presented by defendant's reckless conduct" (People v. Register, 60 N.Y.2d 270, 277, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544; see also, People v. Poplis, 30 N.Y.2d 85, 89, 330 N.Y.S.2d 365, 281 N.E.2d 167; People v. France, 57 A.D.2d 432, 435, 394 N.Y.S.2d 891). Because the defendant's subjective intent is irrelevant, prior versions of the statute were read as providing that reckless endangerment was only committed where the defendant's indiscriminate conduct imperiled a group of persons, not where he targeted his actions toward a specific victim. It is now understood, however, that the crime may be committed even when the defendant's actions are directed against a particular individual (see, People v. Graham, 41 A.D.2d 226, 342 N.Y.S.2d 361; see also, People v. Poplis, supra).

Even in holding, however, that 1) the establishment of the actus reus of actually creating a risk will be assessed objectively and 2) that a specific intent to harm on the part of the defendant is irrelevant, the New York Court of Appeals by no means said that there was no mens rea to the crime of reckless endangerment or that the subjective mens rea of the defendant on trial was irrelevant. Quite to the contrary, that court pointed out that it is still necessary that the defendant 1) be aware of a risk and 2) disregard that risk:

A person acts recklessly when he is aware of, but disregards, a substantial and unjustifiable risk to the degree that his behavior does not comport with the manner in which a reasonable person would have acted under the circumstances. (emphasis supplied).

530 N.Y.S.2d at 530, 526 N.E.2d at 21.

The essential distinction between the crimes of manslaughter, second degree, and criminally negligent homicide is the mental state of the defendant at the time the crime was committed. (People v. Haney, 30 N.Y.2d 328, 333, 333 N.Y.S.2d 403, 407, 284 N.E.2d 564, 565.) In one, the actor perceives the risk, but consciously disregards it. (Penal Law, § 15.05, subd. 3.) In the other, he negligently fails to perceive the risk. (Penal Law, § 15.05, subd. 4). The result and the underlying conduct, exclusive of the mental element, are the same.

It is necessary to say whether in this record there was a reasonable view of the evidence that would have supported a finding that the defendant committed the lesser but not the greater offense, thus entitling him to the instruction as requested. (CPL 300.50.) We think there was. Whether the defendant perceived the risk of harm and consciously disregarded it (manslaughter, second degree) or negligently failed to perceive the risk (criminally negligent homicide) was, we think, on this record for the jury, properly instructed, to say. When the defendant placed the derringer at Thomasina's breast, he was at least negligent with regard to the risk posed, or so the jury would have been privileged to conclude. Whether when the derringer was cocked and while 'playing with the gun', unawareness escalated or should have escalated to awareness of the ultimate risk created--criminal recklessness--was a factual question for the jury, considering all the circumstances including, by way of example, defendant's familiarity with weapons and the safety and other characteristics of this weapon, the interval since he last handled this particular weapon, and the likelihood that it was still loaded. While it is his perception or nonperception of the risk of harm that governs and not the manner of occurrence of the ultimate harm inflicted, risk creation and risk perception are colored also by how others viewed the situation. Here, notably, the jury could conclude from the evidence that Thomasina viewed the defendant's actions as only 'messing' with the derringer, which perception, with other permissible inferences, might support a

Page 122

jury finding of guilty of criminally negligent and not reckless homicide.

“In evaluating the propriety and reasonableness of the actions by the police, we must take cognizance of the realities of urban life in relation to the dangers to which officers are exposed daily, which often require split-second decisions, with life or death consequences” (People v. Reyes, 91 A.D.2d 935, 936, 457 N.Y.S.2d 829 [1983] ). Defendant testified that he thought the noise he heard at 11:00 pm was a gunshot. This belief was not unreasonable. Indeed, other witnesses testified that they were familiar with the sound of gunfire because they had heard it before in the neighborhood. There were people in the vicinity of the van, which was in a dark area, and defendant, who approached without backup, did not have a good view of the van's interior.

Given these circumstances, it cannot be said that defendant's approach to the van was not inherently dangerous (compare [85 A.D.3d 496] Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 [1977] [routine stops for traffic violations are inherently dangerous to police officers]; People v. Rodriguez, 81 A.D.3d 404, 915 N.Y.S.2d 551 [2011][same]). Thus, absent proof of the proper police procedures for approaching any situation with a gun, there is an insufficient basis in the record to determine, under the particular circumstances of this case, that the risk created by defendant's actions in unholstering his weapon when responding to the accident scene was unjustifiable and constituted a gross deviation from the standard of conduct that a reasonable officer would have observed.

Indeed, to the extent that there was evidence by which to evaluate the reasonableness of defendant's police tactics, the evidence did not support the guilty verdict for reckless manslaughter (see People v. Conway, 40 A.D.3d 455, 839 N.Y.S.2d 1 [2007]). The defense expert, Mr. Kapelsohn, testified that defendant's approach to the van with his weapon drawn and pointed downward was not improper because defendant thought the initial sound of the van colliding with the cars could be a

[925 N.Y.S.2d 47]

gunshot. Defendant explained that he kept his weapon in the “bladed” position, even after he observed that the van had been in an accident, because he still did not know what he would walk into or what would come up, since the van was in a shaded area, its windows were dark, and the cause of the accident and number of the van's occupants were unknown. Further, defendant had no radio, cell phone, partner or Kevlar vest; his weapon was his only line of defense. Neither Mr. Kapelsohn's nor defendant's testimony was rebutted.

Contrary to the dissent's contention, this analysis is not contingent on a rejection of the trial court's credibility findings, or the acceptance of defendant's contention that he was dragged by the van. Rather, it is based on the fact that without guidance from the relevant NYPD procedures, it is not evident that defendant, in his particular situation, acted unreasonably when he drew his weapon, let alone that he “grossly deviated” from the standard of conduct of a reasonable police officer, which was the theory on which the People based its request for the second-degree manslaughter charge. Accordingly, the weight of the evidence, as to culpability, to the extent there was any evidence at all, was that defendant's conduct in drawing his weapon when he first approached the van was “not so culpable as to warrant a finding that any such negligence rose to the level of criminality” (see Conway, 40 A.D.3d at 456, 839 N.Y.S.2d 1).

At bottom, all that was needed for the manslaughter charge to be sustained was for the People to satisfy its elements. That is, that defendant was "aware of and consciously disregard[ed] a substantial and unjustifiable risk that [death] [would] occur ... The risk [being] of such nature and degree that disregard thereof constitute[d] a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]; People v. Lora, 85 A.D.3d 487, 491, 925 N.Y.S.2d 38 [1st Dept. 2011], appeal dismissed 18 N.Y.3d 829, 938 N.Y.S.2d 833, 962 N.E.2d 254 [2011]).

The question then becomes whether the People presented sufficient evidence to establish that defendant consciously disregarded the risk that Haeg and Rappold would die as a result of his prescribing practices. Trial evidence is legally sufficient to support a conviction if, viewed in the light most favorable to the People, it could lead a rational jury to find the defendant guilty beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). A jury's verdict is supported by sufficient evidence if the evidence presented supports "any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Defendant, an off-duty Buffalo Police Officer, was convicted, following a jury trial, of manslaughter in the second degree for recklessly causing the death of Anthony Williams by shooting him with his service revolver. The incident occurred around 3 A.M. on October 22, 1989 after defendant went to the assistance of another off-duty Officer who was working as a restaurant security guard. They had subdued Williams and were applying handcuffs when defendant pulled out his gun, placed it against Williams' head and threatened to blow his brains out if he moved. Although there is some dispute in the testimony, Williams either yelled or moved his head, and defendant's gun went off, shooting Williams in the head.

At trial, defendant contended that the shooting was a tragic accident which resulted from the fact that, unbeknownst to him, his gun was damaged and became cocked during the struggle with Williams, requiring minimal pressure for discharge. Defendant asserted that he was not aware of and did [174 A.D.2d 999] not consciously disregard a substantial and unjustifiable risk and thus was not guilty of reckless manslaughter (Penal Law § 125.15[1]. In support of his defense, defendant called a firearms expert. The court refused to allow the expert to answer several hypothetical questions posed by defense counsel pertaining to a possible cause for the discharge of defendant's revolver.

The trial court did not abuse its discretion in sustaining the People's objection to the admissibility of the expert's opinion. The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court (People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351). Expert opinions which are "contingent, speculative, or merely possible" lack probative force and are, therefore, inadmissible (Matott v. Ward, 48 N.Y.2d 455, 461, 423 N.Y.S.2d 645, 399 N.E.2d 532; Strohm v. New York, L.E. & W. R.R. Co., 96 N.Y. 305, 305-306; People v. Miller, 116 A.D.2d 595, 497 N.Y.S.2d 455; People v. Roff, 67 A.D.2d 805, 805-806, 413 N.Y.S.2d 43). After an offer of proof, the trial court concluded that the expert's opinion about the way the weapon discharged was speculative and conclusory. We agree. Moreover, it was not necessary for the jury to have the benefit of expert testimony to assist them in considering whether the risk created by defendant's actions was substantial, unjustifiable and constituted a gross deviation from the standard of conduct that a reasonable officer would have observed (see, People v. Licitra, 47 NY2d 554, 559, 419 N.Y.S.2d 461, 393 N.E.2d 456).

Defendant's claim that a justification defense was interposed by the prosecutor's cross-examination of the expert witness is not supported by the record. Defendant's use of his weapon was a critical issue at trial. Defense counsel elicited testimony from his expert, a former training officer for the Buffalo Police Department, about a variety of situations in which officers

Page 161

can permissibly use their weapons to control an unruly crowd or as an instrument of intimidation to help effectuate an arrest. Defendant objected to cross-examining the expert regarding Penal Law § 35.30, which addresses circumstances in which a police officer is authorized to use physical force or deadly physical force. In our view, that questioning was a fair response to the direct testimony of the expert as that statute governs the justification of a police officer's use of physical force in effecting an arrest.