State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 22, 2020 111696

_______________________________

THE PEOPLE OF THE STATE OF

NEW YORK,
Respondent,
v OPINION AND ORDER

CADEN N.,
Appellant.
_______________________________

Calendar Date: September 16, 2020

Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Reynolds

Fitzgerald, JJ.

__________

Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Raymond M.

Schlather of counsel), for appellant.

Weeden A. Wetmore, District Attorney, Elmira (William D.

Vandelinder of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Chemung

County (Rich Jr., J.), rendered August 16, 2019, which sentenced
defendant upon his adjudication as a youthful offender.

In July 2018, defendant, then 18 years old, was driving

his vehicle on Westinghouse Road in the Village of Horseheads,
Chemung County with three passengers. As he was turning left
from the southbound lane of Westinghouse Road onto Westlake
Street, he collided with a motorcycle approaching in the
northbound lane of Westinghouse Road, resulting in the deaths of
 -2- 111696

the motorcycle's driver and passenger (hereinafter collectively

referred to as the victims). A blood test taken a little less
than three hours after the accident revealed the presence of THC
in defendant's blood. He was thereafter charged by indictment
with vehicular manslaughter in the first degree, two counts of
vehicular manslaughter in the second degree and driving while
ability impaired by drugs.1

Prior to trial, defendant requested a hearing under Frye v

United States (293 F 1013 [DC Cir 1923]) to determine the
admissibility of certain evidence pertaining to his alleged
impairment at the time of the accident. County Court granted
the request and, following the hearing, permitted a police
sergeant and a state trooper to testify about their observations
of defendant after the accident and his performance on certain
field sobriety tests (hereinafter FSTs). However, the court
precluded them from giving their "opinion regarding . . . the
level of defendant's impairment" due to their failure to perform
the full 12-step Drug Recognition Evaluation protocol. The
court also limited testimony from any witness about "[a]
correlation between blood levels of THC which may have been
taken at the [emergency room] and [defendant's] impairment at
the time of the crash."

Following a bench trial, County Court found defendant

guilty of vehicular manslaughter in the first degree,
adjudicated him a youthful offender, sentenced him to a prison
term of 1 to 3 years and ordered him to pay restitution.2
Defendant appeals.

Defendant contends that the verdict is not supported by

legally sufficient evidence and is against the weight of the
1
Although count 3 of the indictment charged the crime of
vehicular manslaughter in the first degree, it provided a
citation to the Penal Law section for vehicular manslaughter in
the second degree (see Penal Law § 125.12 [1]).
2
County Court did not reach a verdict on the remaining
counts insofar as they were lesser included offenses of the
first count.
 -3- 111696

evidence because the People failed to prove that he operated his

vehicle while impaired by marihuana and caused the victims'
deaths as a result. We disagree. When assessing the legal
sufficiency of the evidence, we "view the evidence in the light
most favorable to the People and evaluate whether there is any
valid line of reasoning and permissible inferences which could
lead a rational person to the conclusion reached by the
[factfinder] on the basis of the evidence at trial and as a
matter of law satisfy the proof and burden requirements for
every element of the crime charged" (People v Rudge, 185 AD3d
1214, 1215 [2020] [internal quotation marks and citations
omitted], lv denied 35 NY3d 1070 [2020]; see People v Ramos, 19
NY3d 133, 136 [2012]). When undertaking a weight of the
evidence analysis, we must "view the evidence in a neutral light
and determine first whether a different verdict would have been
unreasonable and, if not, [then] weigh the relative probative
force of conflicting testimony and the relative strength of
conflicting inferences that may be drawn from the testimony to
determine if the verdict is supported by the weight of the
evidence" (People v Henry, 173 AD3d 1470, 1473 [2019] [internal
quotation marks and citations omitted], lv denied 34 NY3d 932
[2019]).

As relevant here, "[a] person is guilty of vehicular

manslaughter in the first degree when he or she commits the
crime of vehicular manslaughter in the second degree . . . [and]
causes the death of more than one other person" (Penal Law §
125.13 [4]). A person is guilty of vehicular manslaughter in
the second degree when, in pertinent part, "he or she causes the
death of another person, and . . . operates a motor vehicle in
violation of [Vehicle and Traffic Law § 1192 (4)], and as a
result of . . . impairment by the use of a drug . . . operates
such motor vehicle . . . in a manner that causes the death of
such other person" (Penal Law § 125.12 [1]). Vehicle and
Traffic Law § 1192 (4) provides that "[n]o person shall operate
a motor vehicle while the person's ability to [do so] is
impaired by the use of a drug."

The term "impairment" as used in Penal Law § 125.12 (1) is

not statutorily defined. The Court of Appeals has defined that
 -4- 111696

term in the limited context of the prohibition against driving

while one's ability to do so is impaired by alcohol (see Vehicle
and Traffic Law § 1192 [1]). In that situation, the question of
impairment focuses on "whether, by voluntarily consuming
alcohol, [the] defendant has actually impaired, to any extent,
the physical and mental abilities which he [or she] is expected
to possess in order to operate a vehicle as a reasonable and
prudent driver" (People v Cruz, 48 NY2d 419, 427 [1979]
[emphasis added], appeal dismissed 446 US 901 [1980]; accord
People v Keener, 152 AD3d 1075, 1075 [2017]). However, as noted
by the Court of Appeals, driving while intoxicated by alcohol is
a more serious offense (a misdemeanor) than driving while
impaired by alcohol (a traffic infraction) and, therefore,
requires a showing of "a greater degree of impairment," focusing
on whether "the driver has voluntarily consumed alcohol to the
extent that he [or she] is incapable of employing the physical
and mental abilities which he [or she] is expected to possess in
order to operate a vehicle as a reasonable and prudent driver"
(People v Cruz, 48 NY2d at 428 [emphasis added]; see Matter of
Johnston, 75 NY2d 403, 408-409 [1990]). Although the parties
both rely on the Court of Appeals' definition of "impairment by
alcohol" as set forth in Cruz to supply the relevant definition
of "impairment by the use of a drug" as used in Penal Law §
125.12, we conclude that this definition is misplaced in the
context of assessing whether a person has committed the crime of
vehicular manslaughter in the second degree. The focus of these
provisions is on whether a driver's ability to operate a motor
vehicle has been compromised by the consumption of alcohol or
drugs and to what extent. In effect, the greater a driver's
ability to function has been compromised the greater the penalty
imposed (see People v Litto, 8 NY3d 692, 705 [2007]). For this
reason, "the scheme of [Vehicle and Traffic Law §] 1192 provides
for different levels or kinds of proof to establish violations
of the statute" (id.).

Notably, under Penal Law § 125.12 (1), one who operates a

motor vehicle and causes the death of another while impaired by
alcohol is not subject to a conviction for vehicular
manslaughter in the second degree, whereas one who causes such
death while intoxicated by alcohol or impaired by a drug (or a
 -5- 111696

combination of alcohol and drugs) falls within the statute's

reach (see Penal Law §§ 125.13, 125.12 [1]). This statutory
scheme imposes equal sanctions upon motorists who cause death
while intoxicated by alcohol or while impaired by a drug (see
People v Litto, 8 NY3d at 702). Such a distinction between
impairment by alcohol and impairment by a drug (or a combination
of both) can only be deemed consistent with the legislative
scheme if the same standard is applied to each misdemeanor
category included in the vehicular manslaughter statute.
Accordingly, in our view, the degree of impairment necessary to
convict a motorist of vehicular manslaughter in the second
degree based upon a death that was caused while such motorist
was under the influence of one of the drugs enumerated in Public
Health Law § 3306 (which includes marihuana) is the same degree
of impairment as would be necessary to sustain a conviction of
driving while intoxicated by alcohol – namely, the People must
prove that such motorist was "incapable of employing the
physical and mental abilities which he [or she was] expected to
possess in order to operate a vehicle as a reasonable and
prudent driver" (People v Cruz, 48 NY2d at 428 [emphasis
added]). To the extent that this Court's decision in People v
Rossi (163 AD2d 660, 662 [1990], lv denied 76 NY2d 943 [1990])
can be read as holding that a conviction of vehicular
manslaughter in second degree based upon a violation of Vehicle
and Traffic Law § 1192 (4) only requires proof that the motorist
was impaired "to any extent," it should no longer be followed.

With respect to causation, the People were required to

prove that defendant "set in motion the events that led to the
victims' deaths" and "was a sufficiently direct cause of the
ensuing deaths" (People v Ballenger, 106 AD3d 1375, 1377 [2013]
[internal quotation marks, brackets and citations omitted], lv
denied 22 NY3d 995 [2013]). "[A] defendant's conduct
constitutes a sufficiently direct cause of death when the People
prove (1) that [the] defendant's actions were an actual
contributory cause of the death, in the sense that they forged a
link in the chain of causes which actually brought about the
death; and (2) that the fatal result was reasonably foreseeable"
(People v Li, 34 NY3d 357, 369 [2019] [internal quotation marks,
 -6- 111696

brackets and citation omitted]; see People v DaCosta, 6 NY3d

181, 184 [2006]).

At trial, a friend of defendant (hereinafter passenger 1)

testified that defendant picked him up in his vehicle from the
house of a mutual friend (hereinafter passenger 4) at
approximately 4:00 p.m. on July 10, 2018 to take him to work.
Two other individuals (hereinafter passengers 2 and 3) were
present in defendant's vehicle and passenger 4 also got in.
According to passenger 1, the group emptied tobacco from three
small cigars and filled them each with marihuana. Passenger 1
explained that defendant then drove to the vicinity of Harris
Hill in the City of Elmira, Chemung County, where the group –
including defendant – smoked two of the marihuana cigarettes
while defendant was driving. Passenger 1 testified that
defendant took some turns over Harris Hill that were "a little
quick," prompting passenger 1 to fasten his seatbelt. Defendant
then dropped passenger 1 off at work and went with the three
other passengers to the mall.

The other passengers corroborated passenger 1's testimony

that the group smoked marihuana before dropping passenger 1 off
at work. Passenger 3 also testified that defendant drove
quickly over Harris Hill, describing his driving as "reckless[]"
but noting that Harris Hill has a "steep slope" and he was
generally not concerned. At approximately 4:30 p.m., after
passenger 1 had been dropped off at work, the rest of the group
went to a mall, where more marihuana was consumed in the parking
lot. They then decided to go to a tattoo shop and proceeded
through the Village of Horseheads. According to passenger 3,
when defendant was attempting to turn onto Westinghouse Road
from Watkins Glen Road, he failed to yield the right-of-way to a
car that was also attempting to turn onto Westinghouse Road from
the opposite direction and that had gotten to the intersection
first. Although passenger 3 was not concerned, he explained
that defendant "went in front" of the car and thought "that was
a little close." Defendant then proceeded southbound on
Westinghouse Road within the speed limit and activated his left
turn signal when he came upon Westlake Street. When he was in
the process of turning left onto Westlake Street, passenger 2,
 -7- 111696

who was in the front passenger seat, yelled for him to stop
because she saw a motorcycle coming in the northbound traffic
lane on Westinghouse Road, estimating that it was 50 yards away
at the time. To passenger 2's knowledge, there were no cars in
front of defendant's vehicle at that time. The motorcycle ended
up striking the front of defendant's vehicle – to the right of
its license plate – in the northbound lane of Westinghouse Road,
resulting in the victims' deaths. The collision occurred at
5:48 p.m., after which defendant told police officers that he
did not see the motorcycle before impact.

As to the manner in which the accident occurred, the

People elicited testimony from non-passenger witnesses Sidney
Smith and Danielle Folk, who were both driving in the southbound
lane of Westinghouse Road a few cars behind defendant's vehicle.
Smith recalled seeing defendant's vehicle make an "abrupt turn"
onto Westlake Street seconds before the accident and stated that
she was able to see the motorcycle immediately before impact
"not very far" from defendant's vehicle. Folk similarly
testified that defendant made a "left turn" and "cut[] the
motorcycle off almost immediately." Folk, who was a couple of
cars behind defendant at the time, stated that she was able to
see the motorcycle "only an instant" before the accident. The
People also presented evidence that the portion of Westinghouse
Road that intersects with Westlake Street is relatively straight
and flat, and that it was a sunny day when the accident
occurred.

David Ruhmel, a police officer, testified that he

responded to the accident, smelled marihuana emanating from
defendant's vehicle and found a "small plastic baggie" of
marihuana on the pavement near the car. However, he did not
smell marihuana on defendant's person and observed him to be
coherent and steady on his feet. Sean Murray, a police
sergeant, then arrived on the scene and accompanied defendant to
the hospital, where he performed a series of FSTs. Although
Murray conceded that defendant performed some of the FSTs in a
satisfactory manner, he emphasized that defendant was unable to
hold his eyes in a crossed position during a convergence test
and described "a noticeable" fluttering under defendant's
 -8- 111696

eyelids and a tremor in his right leg during a modified Romberg

test. State trooper Brandon Salyerds, who watched Murray
perform the FSTs, observed that defendant had bloodshot and
watery eyes, but acknowledged such condition could have been
caused by crying. Moreover, a physician who examined defendant
at the hospital found his eyes to converge and dilate
appropriately.

A blood test taken a little less than three hours after

the accident revealed 2.2 ng/ml of delta-9 THC and 33 ng/ml of
delta-9 carboxy THC in defendant's blood. The People's forensic
toxicologist, Daniel Isenschmid, testified that delta-9 THC
concentrations in the blood are highest at the time of smoking
and generally taper off to very low levels a couple of hours
later. Isenschmid explained that, although delta-9 carboxy THC
is an inactive metabolite that does not have psychoactive
effects, it can be used as a marker of prior cannabis use
because it forms more slowly and then "remains elevated for a
longer period of time after the delta-9 THC goes down."
According to Isenschmid, the level of carboxy THC in defendant's
blood was a "relatively high concentration," signifying that an
even higher concentration of delta-9 THC had been present in
defendant's blood at some earlier point in time. That said,
Isenschmid noted that, unlike with alcohol, it was impossible to
extrapolate the concentration of THC backwards to an earlier
time. Elizabeth Spratt, another forensic toxicologist who
testified for the People, explained that marihuana impacts a
person's psychomotor performance and reaction time. Spratt
noted that marihuana consumption can produce certain physical
manifestations, such as bloodshot and watery eyes and a lack of
convergence. Spratt opined that the characteristics that Murray
and Salyerds observed when defendant was performing the FSTs,
coupled with the circumstances of the accident and his "positive
THC level in the blood hours after the incident" indicated that
"his psychomotor performance was impaired" at the time of the
accident. However, a board-certified pathologist who testified
for defendant stated that it was impossible to determine whether
defendant was impaired at the time of the accident because there
were "too many unknown variables" and no consensus in the
 -9- 111696

scientific community as to when the peak effects of marihuana

occur.

The People also presented evidence from an accident

reconstructionist, who opined that the vehicle's point of rest
in the oncoming traffic lane indicated that defendant had taken
a short left-hand turn while prematurely cutting across the
center line. Moreover, the information collected from the event
data recorder in defendant's vehicle showed that, five seconds
before impact, defendant was traveling in a straight line within
the speed limit. From five seconds to 1½ seconds before impact
defendant was "casually slowing down." By 1½ seconds before
impact, defendant's turning input had increased to five degrees,
which the accident reconstructionist noted "was pretty
insignificant . . . [and] [p]robably wouldn't even have changed
his [lane]." However, by one second prior to impact,
defendant's steering input increased to 55 degrees. The
accident reconstructionist explained that it normally takes a
person 1½ seconds to perceive a danger and timely react,
testifying that defendant's turning motion "didn't allow the
[motorcycle driver] enough time to see, perceive and react."
Based upon the evidence, the reconstructionist concluded that
"[t]he primary cause of the crash was [defendant's] failure to
yield [the] right-of-way" and his "left turn directly into the
path of the motorcycle." There was conflicting evidence as to
the motorcycle's preimpact speed, with the People's accident
reconstructionist estimating that the motorcycle was traveling
between 25 and 30.7 miles per hour at impact and defendant's
reconstructionist approximating a speed of 63.22 miles per hour.
Defendant's accident reconstructionist opined that, had the
motorcycle been traveling within the speed limit, defendant
would have completed the turn without incident.

Viewing the foregoing evidence in the light most favorable

to the People, and utilizing the "impairment" standard defined
above, we conclude that there is a valid line of reasoning and
permissible inferences that could lead a rational factfinder to
conclude that defendant operated his vehicle while impaired by
marihuana and, because of such impairment, did so in a manner
that caused the victims' deaths (see People v Uribe, 109 AD3d
 -10- 111696

844, 844 [2013], lv denied 23 NY3d 969 [2014]; People v

Vercruysse, 221 AD2d 999, 999 [1995]). As to the weight of the
evidence, a different verdict would not have been unreasonable
given the testimony that defendant did not appear outwardly
impaired when police officers reported to the scene of the
accident. Nevertheless, the extensive testimony regarding
defendant's marihuana consumption less than two hours before the
accident, coupled with the manner in which he was driving prior
thereto and his failure to notice the motorcycle in the oncoming
traffic lane despite an unobstructed view and the ability of at
least two other people to see it immediately prior to the
accident, supported County Court's determination that defendant
was "incapable of employing the physical and mental abilities
which he [wa]s expected to possess in order to operate a vehicle
as a reasonable and prudent driver" (People v Cruz, 48 NY2d at
428).

With respect to causation, the People demonstrated that

defendant set in motion the events that led to the victims'
death by abruptly turning left in front of the approaching
motorcycle on a 40 mile-per-hour roadway. It was foreseeable
that the victims could die as a result of defendant's conduct
(see generally People v Li, 34 NY3d at 369-370). The
conflicting expert opinions as to the motorcycle's preimpact
speed presented credibility issues for County Court to resolve
(see People v Kouao, 177 AD3d 1335, 1335 [2019], lv denied 34
NY3d 1160 [2020]). In any event, defendant's conduct need not
have been the sole cause of death for criminal liability to
attach (see People v DaCosta, 6 NY3d at 184). "Even an
intervening, independent agency will not exonerate [a] defendant
unless the death is solely attributable to the secondary agency,
and not at all induced by the primary one" (Matter of Anthony
M., 63 NY2d 270, 280 [1984] [internal quotation marks and
citations omitted]; accord People v Li, 34 NY3d at 370).
Although passenger 2 estimated that the motorcycle was 50 yards
away when defendant initiated his turn, she admitted to having
consumed marihuana before the accident. By contrast, Folk and
Smith both indicated that defendant turned within close
proximity to the motorcycle, with Folk stating that defendant
"cut[] the motorcycle off almost immediately." The evidence
 -11- 111696

from the event data recorder substantiates that contention.

Given such evidence, a rational factfinder could discredit
passenger 2's testimony and conclude that defendant took a left
turn far too close to the motorcycle. When deferring to County
Court's credibility determinations and viewing the evidence in a
neutral light (see People v Gill, 168 AD3d 1140, 1141 [2019]),
we find that the People proved beyond a reasonable doubt that
the crash was not solely attributable to the motorcyclist's
speed and that defendant's failure to perceive and yield the
right-of-way to the oncoming motorcycle under the described
circumstances was a "sufficiently direct cause of the ensuing
death[s]" (People v Ballenger, 106 AD3d at 1377 [internal
quotation marks and citations omitted]; see People v Peryea, 68
AD3d 1144, 1147-1148 [2009], lv denied 14 NY3d 804 [2010];
compare People v Ryan, 161 AD3d 893, 897 [2018]). Accordingly,
the verdict is not against the weight of the evidence.

Although not challenging County Court's Frye ruling,

defendant next contends that the court violated its Frye ruling
and abused its discretion in admitting certain opinion testimony
from Spratt on the issue of defendant's alleged impairment.
Generally, "trial courts possess broad discretion to make
evidentiary rulings" precluding or admitting evidence (People v
Hemphill, 35 NY3d 1035, 1036 [2020]; see People v Aska, 91 NY2d
979, 981 [1998]), and, "absent an abuse of discretion, those
rulings should not be disturbed on appeal" (People v Collins,
126 AD3d 1132, 1133 [2015] [internal quotation marks and
citations omitted], lv denied 25 NY3d 1161 [2015]). Expert
opinion testimony is proper "when it would help to clarify an
issue calling for professional or technical knowledge, possessed
by the expert and beyond the ken of the typical juror" (People v
Rivers, 18 NY3d 222, 228 [2011] [internal quotation marks and
citations omitted]).

Defendant contends that County Court erred by allowing

Spratt to utilize his performance on the FSTs as a component of
her opinion that defendant was impaired at the time of the
accident when both Murray and Salyerds were precluded from
opining as to his impairment due to their failure to administer
the full Drug Recognition Evaluation protocol. Spratt, however,
 -12- 111696

was a board-certified forensic toxicologist who possessed

specialized knowledge about the manner in which marihuana
affects psychomotor capabilities and was qualified to give an
opinion on the matter (see People v MacDonald, 227 AD2d 672,
674-675 [1996], affd 89 NY2d 908 [1996]; see generally People v
Lamont, 21 AD3d 1129, 1132 [2005], lv denied 6 NY3d 835 [2006]).
In any event, Spratt's opinion regarding defendant's impairment
was not solely based on the FST results, and she confirmed that
her opinion regarding defendant's impairment would remain the
same even if no FSTs had been performed. As such, we perceive
neither inconsistency nor error in the court's admission of such
testimony. Moreover, contrary to defendant's contention, Spratt
did not base her opinion that he was impaired at the time of the
accident on the specific level of THC found in his blood and
expressly acknowledged that "you can't back extrapolate . . .
with marihuana." Rather, Spratt referenced the active THC found
in defendant's blood as background information relevant to her
assessment, based upon a constellation of factors, that
defendant was impaired by the marihuana that he had smoked
shortly before the accident. Her opinion was informed by a
variety of factors, including the timing of the accident in
relation to when the peak effects of marihuana typically occur,
the circumstances of the accident, defendant's "outward signs"
of impairment and the fact that active THC was found in his
blood thereafter. As Spratt was qualified to render such an
opinion and her testimony was within the permissible bounds of
County Court's Frye ruling, County Court did not abuse its
discretion in admitting her testimony (see People v Nicholson,
26 NY3d 813, 829 [2016]).

Defendant further contends that the presumption set forth

in Penal Law §§ 125.13 and 125.12 is unconstitutional as applied
in cases of marihuana impairment because it shifts the burden of
proof on the element of causation and is unconstitutionally
vague. Penal Law § 125.13 provides that, "[i]f it is
established that the person operating such motor vehicle caused
such death or deaths while unlawfully intoxicated or impaired by
the use of alcohol or a drug[,] . . . then there shall be a
rebuttable presumption that, as a result of such intoxication or
impairment[,] . . . such person operated the motor vehicle in a
 -13- 111696

manner that caused such death or deaths." In People v Stickler

(97 AD3d 854 [2012], lv denied 20 NY3d 989 [2012]), this Court
concluded that the presumption set forth in Penal Law § 125.12 –
which is substantially the same as the one set forth in Penal
Law § 125.13 – does not shift the burden of proof on the element
of causation, explaining the presumption is permissive and
arises only if the People first prove, beyond a reasonable
doubt, that the person operating a motor vehicle caused the
victim's death while unlawfully intoxicated by alcohol or
impaired by a drug. This Court also concluded that the
presumption does not render Penal Law § 125.12
unconstitutionally vague because "it contains sufficient
standards to afford a reasonable degree of certainty so that a
person of ordinary intelligence is not forced to guess at its
meaning, and to safeguard against arbitrary enforcement" (People
v Stickler, 97 AD3d at 856 [internal quotation marks and
citations omitted]). Although Stickler was decided in the
context of an accident that occurred when the defendant was
intoxicated by alcohol, we perceive no reason to depart from its
holding in the case of impairment by marihuana. Moreover, based
on the evidence presented at trial, there was a "rational way
the trier [of fact] could make the connection permitted by the
inference" (Matter of Raquel M., 99 NY2d 92, 95-96 [2002]
[internal quotation marks and citation omitted]; see People v
Leyva, 38 NY2d 160, 165 [1975]).3 Therefore, defendant's
constitutional challenges fail.

Furthermore, recognizing that this was a bench trial,

County Court did not err in denying defendant's request to
deviate from the standard set forth in the Criminal Jury
Instructions (hereinafter CJI) to reflect that the presumption
applied only if the court found defendant to be the sole
proximate cause of the victims' deaths. As previously
explained, defendant's contention in that respect ignores the
well-settled premise that criminal liability "will attach even
3
It is noted that County Court did not specifically
state whether it would apply the presumption in this case,
stating only that it saw no reason why it could not consider it
and that it was "not as a matter of law ruling the presumption
out."
 -14- 111696

if the defendant's conduct is not the sole cause of death"

(People v DaCosta, 6 NY3d at 184; see People v Li, 34 NY3d at
369). Indeed, "if a driver's operation of a vehicle cannot be
deemed a proximate cause of the subject accident, then the
rebuttable presumption would not arise" (People v Mojica, 62
AD3d 100, 110 [2009] [emphasis added], lv denied 12 NY3d 856
[2009]).4 As such, County Court did not err in declining to
revise the CJI charge on vehicular manslaughter in the first
degree with respect to the presumption and appropriately adhered
to the expanded CJI charge on causation.

Defendant also contends that County Court abused its

discretion in excluding certain testimony about the motorcycle
driver's positive blood test for THC. At the outset, we note
that the trial evidence included an exhibit of the motorcycle
driver's postmortem toxicology report, which showed a positive
THC level of 0.73 ng/ml. County Court, therefore, had evidence
before it regarding the fact that THC was found in the
motorcycle driver's blood. It merely precluded additional trial
testimony on the matter. To the extent that such testimony may
have been relevant to the issue of the motorcycle driver's
impairment at the time of the collision, such impairment, even
if it could be established, would not have constituted a
superseding cause sufficient to absolve defendant of criminal
liability under these circumstances, given the proof that the
manner in which he turned in front of the motorcycle would not
have given even a nonimpaired person sufficient time to react
(see People v Peryea, 68 AD3d at 1147). Therefore, we cannot
conclude that County Court committed reversible error in
excluding such testimony (compare People v Lazartes, 23 AD3d
400, 405-406 [2005]).

Finally, we agree with defendant that County Court erred

in failing to give an adverse inference charge with respect to
the People's failure to preserve certain paint transfers on the
4
This Court's pronouncement in People v Stickler (97
AD3d at 856) that the rebuttable presumption does not arise if
"a driver's operation of a vehicle cannot be deemed the cause of
the subject accident" is a misstatement of law and should not be
followed (emphasis added; internal brackets omitted).
 -15- 111696

motorcycle's crash bar bolt that were material to the defense

expert's assessment of the motorcycle's preimpact speed.
Nevertheless, County Court was made aware of the People's
alleged failure to preserve this evidence and, given the
strength of the People's proof, we conclude that "there is no
significant probability" that defendant would have been
acquitted but for County Court's failure to provide an adverse
inference charge (People v Viruet, 29 NY3d 527, 533 [2017]
[internal quotation marks and citations omitted]; see People v
Strife, 167 AD3d 1095, 1098 [2018]). In our view, the error was
harmless.

Defendant's remaining contentions, to the extent not

specifically addressed herein, have been considered and found
lacking in merit.

Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald,

JJ., concur.

ORDERED that the judgment is affirmed, and matter remitted

to the County Court of Chemung County for further proceedings
pursuant to CPL 460.50 (5).

ENTER:

Robert D. Mayberger
Clerk of the Court