Saturday, November 14, 2009

Doing Nothing Might Not Be A Crime

In affirming a dismissal of an indictment charging criminally negligent homicide (CNH), due to insufficient proof at the Grand Jury, the Fourth Department, in People v Bianco ( __ AD3d __, 2009 NY Slip Op 08371 [11/13/09]), held that a drug users actions and inactions regarding a drug user's "wasted" drug using friend, the court held that leaving the eventual decedent in his car sleeping and looking like he was getting sick, and then, on observing decedent's vehicle parked where he had left it, not stopping to check to see how he was doing was not enough evidence of CNH where the decedent had died while in the vehicle, and the Coroner concluded that the cause of death was "[m]ixed drug intoxication." The Court explained that

The standard for reviewing the legal sufficiency of the evidence before the grand jury is " whether the evidence, viewed in the light most favorable to the People, if unexplained and uncontradicted, would be sufficient to warrant conviction by a trial jury' " (People v Scerbo, 59 AD3d 1066, 1067, lv denied 12 NY3d 821, quoting People v Manini, 79 NY2d 561, 568-569). Here, we conclude that defendant's actions were not a "sufficiently direct cause" of decedent's death to warrant the imposition of criminal liability (People v Kibbe, 35 NY2d 407, 413, rearg denied 37 NY2d 741). Decedent's death was attributed solely to a drug overdose, and the evidence presented to the grand jury established that decedent himself obtained the drugs, outside the presence of defendant, and that decedent did not use drugs in defendant's presence on the day in question (cf. People v Galle, 77 NY2d 953, 955-956).

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