Tuesday, March 29, 2011

DWI Appeal - New York DWI Defense of Justification approved

In People v. Rodriguez--- N.E.2d ----, 2011 WL 1044575 (N.Y.), 2011 N.Y. Slip Op. 02074 involved a highly unusual DWI and manslaughter case. the facts were as follows:

On August 1, 2005, one Francisco Rios double-parked his overloaded box truck, facing downhill, at 103-105 Mt. Eden Avenue in the Bronx. Rios placed the truck in reverse and turned the engine off, leaving the keys in the ignition before going into a store. Defendant, who was walking by, entered the truck. While defendant was inside, the truck descended Mt. Eden Avenue and struck several cars and three pedestrians, seriously injuring two and killing one. At trial, the People and defendant offered the jury markedly different stories as to how all of this occurred. Evidence established that defendant had a blood alcohol content of .09% nearly four hours after the incident which, according to an expert called by the People, meant that his blood alcohol content at the time of the incident was between .13% and .17%, substantially above the “legal limit” of .08%.
The State claimed that the defendant, knowing the driver from previous occasions, caused the truck to move as a joke (in order to move and hide the truck from the driver). Being drunk, they claim he lost control and had the accident. The State also claimed that the defendant exited the truck after the incident and asked, “How many people did I kill?” A witness, seeing three people laying in the road, responded, “You killed three people”, to which defendant replied, “Oh, I was joking around with the truck. I was making a joke and look what I've done.”

The defendant claimed that as he was walking past the truck, he “saw a movement of the truck.” He ran between parked cars to get to the truck which, by this time, was descending the hill and approaching an intersection. Defendant opened the passenger side door, jumped inside, slid over behind the steering wheel and pumped the brakes, to no avail. He tried steering, but the wheel was hard to move. Despite his best efforts, the truck struck several pedestrians crossing the street. He exited the truck on the passenger's side, and went to a nearby bodega. Defendant denied making any statement after the incident.

The trial court refused to give the defense a justification instruction, and the jury convicted the defendant of manslaughter. The justification defense, also known as the “choice-of-evils” defense, provides that conduct that would otherwise constitute an offense is justified when it:

“is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”
The highest appellate court in New York found that the failure to give the justification defense was not error as to the manslaughter charge:

"To be entitled to such a charge there must be two “evils”. And here, even under defendant's scenario, there was no “evil” on his part. According to defendant, he was not committing any offense when he jumped into a runaway vehicle to prevent it doing harm to others. So, as to the most serious charges, a justification charge (i.e. manslaughter) was clearly unwarranted."
As to the DWI charge, the court found that the failure to give the instruction was error, but that the error was harmless:

If defendant elected to operate a motor vehicle, here the truck, while under the influence of alcohol, in an attempt to prevent injury, he faced the choice of two evils: drive while intoxicated or risk a runaway truck causing injury. Therefore, Supreme Court should have granted defendant's request for a justification charge with respect to the operating a motor vehicle while intoxicated counts. However, any error was harmless as evidenced by the jury's conviction of defendant of the second degree manslaughter and assault counts. To find defendant guilty of those charges, the jury was required to conclude, beyond a reasonable doubt, that defendant caused the truck's movement, i.e., that it was not moving before he entered it. Because the jury concluded that it was defendant who caused the truck to move, and not, as defendant contended, that the truck was already moving, the jury never would have considered his “choice of evils” defense on the charge of driving while intoxicated. As a result, the error of not giving the justification charge with respect to the vehicular manslaughter and vehicular assault counts, which include as an element the operation of a motor vehicle while intoxicated, was harmless, and defendant is not entitled to a new trial to correct the error.

NOTE: What is troublesome about the harmless error analysis, is the fact that the court agreed that the jury should have been informed of the defense, but then reasoned that the findings of guilty where not affected by this failure,. The court 'guessed' that a logical jury must have found that the defendant caused the truck to move in the first place. The first problem is that the court of appeals is only guessing as to why the defendant was convicted, and no verdict (including the high court's decision) should be upheld when to do so is based upon guess or conjecture. Second, the failure to adequately instruct a jury about a defense to a charge is a constitutional error of fundamental fairness (i.e. due process), and as such prejudice against the defendant should have been presumed.

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