Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2025-04559, (Ind. No. 70516/24)

Betsy Barros, J.P.

Valerie Brathwaite Nelson

Laurence L. Love

Susan Quirk, JJ.

[*1]

DECISION & ORDER

Appeal by the People from an order of the Supreme Court, Queens County (Michael J. Hartofilis, J.), dated February 19, 2025. The order, insofar as appealed from, granted that branch of the defendant's omnibus motion which was to dismiss the count of the indictment charging him with criminally negligent homicide on the ground that the evidence presented to the grand jury was legally insufficient.

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the defendant's omnibus motion which was to dismiss the count of the indictment charging him with criminally negligent homicide on the ground that the evidence presented to the grand jury was legally insufficient is denied.

The defendant was indicted for various offenses based on a fatal accident that occurred on December 24, 2023, at the intersection of Utopia Parkway and Peck Avenue in Queens County. The evidence before the grand jury indicated that at approximately 1:15 p.m., the defendant was driving on Utopia Parkway at a speed of 81 miles per hour in a 30-mile-per-hour zone, and collided with another vehicle at the intersection of Utopia Parkway and Peck Avenue, leading to the death of the driver of the other vehicle. The area was a residential neighborhood, and there was a playground at the corner of the intersection, and a caution sign directing motorists to exercise additional caution in proceeding through the intersection.

The evidence indicated that, at the scene, the defendant admitted to the police that he was speeding, but claimed he was only traveling at 60 to 70 miles per hour, and was showing his friend how the vehicle "drives." It appeared that the defendant sped up in approaching the intersection, but did reduce his speed to 74 miles per hour in an effort to avoid the other vehicle in the intersection.

The defendant was charged with, inter alia, criminally negligent homicide. The Supreme Court, among other things, granted that branch of the defendant's omnibus motion which was to dismiss the count of the indictment charging him with criminally negligent homicide, [*2]concluding that the evidence presented to the grand jury was legally insufficient. The People appeal.

"A court reviewing the legal sufficiency of an indictment must view the evidence in the light most favorable to the People and determine whether the evidence, if unexplained and uncontradicted, would be legally sufficient to support a verdict of guilt after trial" (People v Holloway, 210 AD3d 1007, 1007; see CPL 210.20[1][b]; People v Jensen, 86 NY2d 248, 251). "In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (People v Holloway, 210 AD3d at 1008 [internal quotation marks omitted]; see People v Bello, 92 NY2d 523, 526; People v Hulsen, 150 AD3d 1261, 1262). "This Court's inquiry is limited to assessing whether the facts, if proven, and the logical inferences flowing therefrom, supply proof of each element of the charged crimes" (People v Holloway, 210 AD3d at 1008; see People v Bello, 92 NY2d at 526). "The existence of innocent inferences arising from the evidence has no bearing upon the legal sufficiency inquiry" (People v Castro, 202 AD3d 815, 816; see People v Deegan, 69 NY2d 976, 979).

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). The mental state of criminal negligence and recklessness "[b]oth require that there be a substantial and unjustifiable risk that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant's conduct amount to a gross deviation from how a reasonable person would act" (People v Asaro, 21 NY3d 677, 684 [internal quotation marks omitted]). However, while recklessness requires that the defendant be aware of and consciously disregard the risk, criminal negligence occurs when the defendant negligently fails to perceive the risk (see id.).

"[T]he culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires 'some additional affirmative act' aside from 'driving faster than the posted speed limit'" (id., quoting People v Cabrera, 10 NY3d 370, 377), which transforms speeding into dangerous speeding, by engaging in some other "risk-creating" behavior such as disregarding traffic signals (People v Cabrera, 10 NY3d at 377). However, there is no per se rule that speeding alone is insufficient (see id. at 376). There are circumstances where excessive speed "absent proof of any other contributing factors" is sufficient (People v Crosby, 151 AD3d 1184, 1188). The extent of the violation of the posted speed limit and the surrounding circumstances must be considered (see People v Paul V.S., 75 NY2d 944).

"[I]n order to sustain a conviction for criminally negligent homicide in a case in which the principal item of evidence consists of proof of the defendant's use of excessive speed, [the law does not require that] the prosecution must always prove some other traffic law violation unrelated to the defendant's rate of speed. While it may be accurate to say that an infraction of the posted speed limit does not ipso facto establish criminal negligence, it would not be accurate to say that a trier of fact may never conclude that in light of the time, the place, the weather conditions, and in light of any number of other factors which might be established at the trial, the defendant's use of excessive speed was criminally negligent" (People v Senisi, 196 AD2d 376, 379).

Here, the evidence before the grand jury, viewed in the light most favorable to the People, was sufficient to support the count of the indictment charging the defendant with criminally negligent homicide. The evidence, if accepted as true, demonstrated that the defendant disregarded road conditions, i.e., the fact that he was traveling in a residential neighborhood with a playground on the corner of the intersection, when he decided to drive his vehicle through the intersection at well above twice the posted speed limit (see People v Sadian, 81 AD3d 987, 987). The evidence further indicated that he was showing off to his friend how the vehicle "drives," which, considering the fact that he accelerated the vehicle's speed while allegedly doing so, indicated that he was showing off how the vehicle operated at a high speed. The evidence further indicated that he ignored a traffic control sign directing motorists to exercise additional caution (see People v Garner, 144 AD3d 940).

Our dissenting colleague notes that in the seconds of videotape available from the defendant's dashboard camera, there were no other vehicles traveling in the same direction as the defendant. However, there were vehicles traveling in the opposite direction, and the defendant could [*3]not assume that he mostly had the road to himself. All of these factors are relevant to the defendant's state of mind. The law does not impose an obligation of proving that each factor considered must be a proximate cause of the accident in order to be considered (see People v Asaro, 21 NY3d at 685 [the defendant's drinking alcohol and smoking marijuana could be considered even though the jury acquitted the defendant of driving while impaired by alcohol]). Therefore, the fact that the defendant did not hit someone who was using or intending to use the playground is not relevant.

Accordingly, the Supreme Court should have denied that branch of the defendant's omnibus motion which was to dismiss the count of the indictment charging him with criminally negligent homicide on the ground that the evidence presented to the grand jury was legally insufficient.

BARROS, J.P., BRATHWAITE NELSON and QUIRK, JJ., concur.

LOVE, J., dissents and votes to affirm the order insofar as appealed from, with the following memorandum:

I respectfully dissent from the finding by the panel majority that the evidence presented to the grand jury was legally sufficient to charge the defendant with criminally negligent homicide. Here, although the 20-year-old defendant, who had recently returned from active duty overseas military service, was clearly negligent and unquestionably "blameworthy" in the happening of a tragic accident, which resulted in the death of the opposing driver, the Supreme Court properly granted that branch of the defendant's omnibus motion which was to dismiss the count of the indictment charging him with criminally negligent homicide.

Although the majority correctly states that "the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires 'some additional affirmative act' aside from 'driving faster than the posted speed limit'" (People v Asaro, 21 NY3d 677, 684, quoting People v Cabrera, 10 NY3d 370, 377), we diverge on the issue of whether an additional affirmative act was presented to the grand jury sufficient to support a finding of recklessness or criminal negligence, viewed in the light most favorable to the People. It was not. The only evidence presented to the grand jury was that the defendant was operating his motor vehicle at a high rate of speed in a residential area, that the point of impact occurred at an intersection adjacent to a playground, and that the defendant allegedly told the police, "he was operating his car and he was showing his friend, wh[o] was a passenger at the time, the way that his vehicle drives." There is no caselaw to establish that the mere fact that a motor vehicle accident occurred in a residential area or near a playground would be considered an additional affirmative act. Whether an accident occurred in a residential, commercial, rural, or highway location has never been found sufficient in this context. There is always an additional factor, whether it be intoxication; disregarding traffic signals (other than a posted speed limit sign); poor weather; drag racing; warnings from passengers; or other unusual and dangerous circumstances.

Here, the grand jury was presented with testimony that the defendant was operating his vehicle at a high rate of speed on a straight, level, dry roadway at midday, with clear weather. No other vehicles were traveling in the same direction and the defendant did not violate any traffic signals. Although the majority highlights that the accident occurred at an intersection which had a posted sign indicating a playground, the playground location was irrelevant to the happening of the accident and therefore is not an additional affirmative act.

The majority also finds, based upon the defendant's alleged statement that he was showing his friend "the way that his vehicle drives," that he was showing off his vehicle to a friend. However, this finding is pure speculation. The defendant's alleged statement, taken on its face, neither implies that he was showing his friend how fast the vehicle could operate nor that he was participating in drag racing. Moreover, the cases cited by the majority in support of this point are distinguishable. Although in People v Sadian (81 AD3d 987), as here, the defendant was traveling at approximately twice the posted speed limit, the defendant in Sadian did so in heavy rain, in an area with heavy commercial traffic, and after striking a pedestrian, fled the scene of the accident. [*4]Similarly, in People v Garner (144 AD3d 940), the defendant, in addition to operating his vehicle at approximately 100 miles per hour, ignored the request of a passenger to slow down as well as posted signs warning of a sharp curve in the road, and struck a vehicle traveling in the same direction as the defendant. Here, the only factor presented to the grand jury was excessive speed, which is insufficient to sustain a charge of criminally negligent homicide.

The majority determines that speed alone can transform into "dangerous speeding" and thus sustain a charge of criminally negligent homicide. However, this determination is in conflict with decisions of this Court and the Court of Appeals, which have repeatedly held that "it takes some additional affirmative act by the defendant to transform 'speeding' into 'dangerous speeding'; conduct by which the defendant exhibits the kind of 'serious[ly] blameworth[y]' carelessness whose 'seriousness would be apparent to anyone who shares the community's general sense of right and wrong'" (People v Cabrera, 10 NY3d at 377, quoting People v Boutin, 75 NY2d 692, 696).

Here, the evidence before the grand jury, viewed in the light most favorable to the People, did not establish "the kind of seriously condemnatory behavior that the Legislature envisioned when it defined 'criminal negligence,' even though the consequences here were fatal" (id. at 378; see People v McGrantham, 12 NY3d 892, 893-894; People v Boutin, 75 NY2d at 697-698).

Accordingly, I dissent and would affirm the Supreme Court's order insofar as appealed from.

ENTER:

Darrell M. Joseph

Clerk of the Court