THE PEOPLE &C., RESPONDENT, v. PATRICK MAHER, APPELLANT.
79 N.Y.2d 978, 594 N.E.2d 915, 584 N.Y.S.2d 421 (1992).
April 7, 1992
1 No. 46
Decided April 7, 1992
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Patrick M. Wall, for Appellant.
Ann E. Ryan, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be modified by vacating
defendant's conviction for criminally negligent homicide and ordering
a new trial as to that count, and otherwise affirmed.
At 4:20 on a Saturday morning, after consuming alcohol, defendant was
involved in a minor traffic accident on a New York City street.
According to defendant, the driver of the second vehicle became
belligerent when defendant attempted to exchange license and insurance
information with him and the driver reached into the back seat of his
car. Believing that the driver was about to produce a weapon,
defendant returned to his own car and fled the scene. A short distance
from the first accident defendant struck and killed a pedestrian,
Frank Flotteron, crossing West Street.
Defendant was indicted for second degree manslaughter, second degree
vehicular manslaughter, driving while intoxicated, and two counts of
leaving the scene of an accident. The felony count of leaving the
scene of the second, fatal accident was dismissed by Supreme Court.
The jury convicted defendant of criminally negligent homicide (a
lesser included offense of vehicular manslaughter) and driving while
impaired (a lesser included offense of driving while intoxicated), and
the Appellate Division affirmed; as to the remaining leaving the scene
count, the jury found defendant not guilty "with justification."
Defendant now seeks reversal of the homicide conviction on two
grounds: insufficiency of the evidence, and the court's refusal to
charge justification with respect to vehicular manslaughter. Defendant
does not contest the driving while impaired conviction.
We conclude that the evidence was sufficient to support the conviction
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be modified by vacating defendant's conviction for
At 4:20 on a Saturday morning, after consuming alcohol, defendant was involved in a minor
According to defendant, the driver of the second vehicle became belligerent when defendant
Defendant was indicted for second degree manslaughter, second degree vehicular manslaughter,
The jury convicted defendant of criminally negligent homicide (a lesser included offense of
Defendant now seeks reversal of the homicide conviction on two grounds: insufficiency of the
Testimony of the various witnesses estimated defendant's speed from 50 to 100 miles per hour
We cannot hold, as a matter of law, that defendant's speeding, in an impaired condition, did
Upon defendant's request, and with no objection by the People, the trial court instructed the
The court refused defendant's request that the jury be given the justification charge with
In concluding that the charge was not warranted as to those counts, the trial court also
The Appellate Division affirmed, holding that Flotteron's death took place after the "alleged
Under the "choice of evils" theory of Penal Law section 35.05, conduct that would otherwise
desirability of avoiding the injury sought to be prevented by the statute defining the offense in
By giving the charge to the jury on the leaving the scene charge, the judge concluded that
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