DEFENDANT DROVE ON THE RIGHT SHOULDER TO GO AROUND A VEHICLE THAT WAS TURNING AND THEN SUDDENLY CROSSED THE DOUBLE LINE AND STRUCK A MOTORCYCLIST IN THE ONCOMING LANE; THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO CONSTITUTE “RECKLESS” CONDUCT WITHIN THE MEANING OF THE MANSLAUGHTER STATUTE (FOURTH DEPT).

The Fourth Department, reversing defendant’s manslaughter conviction and dismissing the indictment, determined the evidence of how defendant was driving before his vehicle crossed into the oncoming lane and struck the victim’s motorcycle did not rise to the level of recklessness:

The People introduced eyewitness testimony at trial that, before the accident, defendant was tailgating a sport utility vehicle (SUV), “hitting his fist on the steering wheel[,] and looking a little agitated.” The driver and front passenger of the SUV testified that, as they made a left-hand turn, defendant passed their vehicle by driving onto the right shoulder of the two-lane roadway, yelling out that he was “going to get [them].” After defendant passed the SUV, his vehicle sharply turned left, crossed into the opposite lane, and struck the motorcycle.

… A defendant’s conduct is reckless with respect to the death of another person when the defendant “is aware of and consciously disregards a substantial and unjustifiable risk” that death will result from it … . “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” … .

Here … the only risk-creating conduct by defendant supporting his conviction of manslaughter in the second degree was his briefly driving on the shoulder of the road to pass a vehicle in front of him that was turning and his subsequently making a sharp left turn and crossing over the double yellow line into the opposite lane. … [T]hat conduct, standing alone, did not exhibit “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” necessary to establish recklessness with respect to the death of another … . People v Lavelle, 2023 NY Slip Op 05920, Fourth Dept 11-17-23

Practice Point: The facts of this case, defendant’s suddenly crossing a double yellow line and striking a motorcyclist in the oncoming lane, do not rise to the level of “recklessness” within the meaning of the reckless manslaughter statute.