You are here: / / CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT...
, ,

CRIMINALLY NEGLIGENT HOMICIDE CONVICTION ARISING FROM A TRAFFIC ACCIDENT WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, over a two-justice dissent, determined the conviction for criminally negligence homicide was against the weight of the evidence. The passenger in defendant’s car was killed when defendant’s car went off the road, apparently after colliding with other cars defendant was attempting to pass. The decision described all of the witness’s testimony in detail and concluded the conflicting testimony was not a sufficient basis for a conviction:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he [or she] causes the death of another person” (Penal Law § 125.10). A person acts with criminal negligence when “he [or she] fails to perceive a substantial and unjustifiable risk that such result will occur or that such [a] 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” (Penal Law § 15.05[4]).

The defendant’s conduct must rise to a level of carelessness where its “seriousness would be apparent to anyone who shares the community’s . . . sense of right and wrong” … . Moreover, the conduct must create the risk, rather than simply not perceive the risk … .

In cases concerning charges of criminally negligent homicide arising out of automobile accidents involving excess rates of speed, “it takes some additional affirmative act by the defendant to transform speeding into dangerous speeding” … .

Here, the People failed to establish, beyond a reasonable doubt, that the defendant “fail[ed] to perceive a substantial and unjustifiable risk” (Penal Law § 15.05[4]) which caused the death of his passenger. People v Derival, 2020 NY Slip Op 02072, Second Dept 3-25-20

 

You might also like
IN A SLIP AND FALL CASE, TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, THE DEFENDANT MUST PROVE THE AREA OF THE SLIP AND FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE INCIDENT; PROOF OF GENERAL CLEANING OR INSPECTION PRACTICES IS NOT ENOUGH; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Because Prior Mortgage Foreclosure Action Had Been Abandoned Plaintiff Was Not Entitled to Dismissal of the Instant Action Pursuant to Real Property Actions and Proceedings Law (RPAPL) 1301(3) (Which Prohibits More than One Such Action at a Time)
THE AFFIANT DID NOT DEMONSTRATE PERSONAL KNOWLEDGE OF THE MAILING PROCEDURES AND DID NOT LAY A FOUNDATION FOR THE ATTACHED BUSINESS RECORDS; THEREFORE THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE THE RPAPL 1304 NOTICE WAS PROPERLY MAILED, A CONDITION PRECEDENT FOR FORECLOSURE (SECOND DEPT). ​
DEFENDANT PROPERTY OWNER DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEFECTS IN THE CEILING THAT FELL ON PLAINTIFFS; THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE DEFENDANTS DID NOT HAVE EXCLUSIVE CONTROL OVER THE CONDITION (SECOND DEPT).
PLAINTIFF’S SIGNING A CONSENT FORM PRIOR TO SURGERY DID NOT REQUIRE DISMISSAL OF THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).
UNDER THE 2022 AMENDMENT TO CPLR 213, A BANK WHICH HAS STARTED A FORECLOSURE ACTION CANNOT STOP THE RUNNING OF THE STATUTE OF LIMITATIONS BY A VOLUNTARY DISCONTINUANCE; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).
IN THIS SLIP AND FALL CASE, THE DEFENDANT SNOW-REMOVAL CONTRACTOR DID NOT NEED TO ADDRESS ANY ESPINAL EXCEPTION IN ITS ANSWER BECAUSE PLAINTIFF DID NOT ALLEGE AN EXCEPTION APPLIED; PLAINTIFF DID NOT DEMONSTRATE THAT AN ESPINAL EXCEPTION APPLIED IN OPPOSITION TO SUMMARY JUDGMENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
WITNESS DID NOT IDENTIFY THE DEFENDANT AT A LINEUP, SAYING ONLY SHE WAS ‘LEANING TOWARD’ CHOOSING THE DEFENDANT, THAT TESTIMONY WAS INADMISSIBLE UNDER CPL 60.25; PROSECUTOR’S REMARKS IN SUMMATION HARSHLY CRITICIZED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

JUDGE SHOULD NOT HAVE, SUA SPONTE, APPOINTED A RECEIVER BECAUSE THAT RELIEF... DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD...