New York Law Review

Tag: risk assessment

  • People v. Mingo, 25 N.Y.3d 1000 (2015): Interpreting SORA Risk Factors and Downward Departures

    25 N.Y.3d 1000 (2015)

    Under the Sex Offender Registration Act (SORA), courts must apply the correct risk assessment instrument (RAI) score and consider all relevant factors when classifying offenders, including whether certain behaviors constitute “sexual conduct” and “grooming” to determine the appropriate risk level.

    Summary

    The New York Court of Appeals addressed the proper application of the Sex Offender Registration Act (SORA) in People v. Mingo. The case involved a sex offender’s risk level classification, challenging the assessment of points under risk factors 3 (number of victims) and 7 (relationship between offender and victim). The Court affirmed the lower court’s assessment of points for the number of victims but reversed the assessment for the relationship with the victims, determining there wasn’t clear and convincing evidence of ‘grooming.’ The court also addressed whether the trial court properly considered the defendant’s request for a downward departure, and remanded the case for further proceedings consistent with this interpretation.

    Facts

    Defendant pleaded guilty to multiple sex crimes involving underage girls. Following his release from prison, the court classified him under SORA. The Board of Examiners of Sex Offenders assessed the defendant as a level two risk, calculating points based on the RAI. The County Court agreed with these assessments, specifically related to the number of victims and the nature of the relationship with them, and denied the defendant’s request for a downward departure from the risk assessment. The Appellate Division affirmed, which led to the appeal to the Court of Appeals.

    Procedural History

    The defendant was charged with various sex crimes, pleaded guilty, and was sentenced to prison. Upon release, his case was returned to County Court for SORA classification. The County Court adopted the Board of Examiners’ risk assessment, which was then affirmed by the Appellate Division. The defendant appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the defendant’s actions toward a girl who was not the subject of SORA level offenses constituted a “victim” for the purpose of assessing points under risk factor 3.
    2. Whether there was clear and convincing evidence to support the assessment of points under risk factor 7, specifically the finding that the defendant engaged in “grooming” behavior.
    3. Whether the County Court’s handling of the defendant’s application for a downward departure was proper.

    Holding

    1. Yes, because the guidelines address the general term “sexual conduct,” not just SORA level offenses.
    2. No, because the expert evidence showed the defendant’s lack of maturity, and there was insufficient evidence of grooming.
    3. The lower courts used an incorrect RAI score, and thus the case was remanded to County Court for determination of the downward departure application.

    Court’s Reasoning

    The Court of Appeals analyzed the RAI guidelines. Regarding risk factor 3, the court determined that the guidelines did not explicitly limit the definition of “sexual conduct” to SORA level offenses, so defendant’s actions toward the third girl could be considered. Regarding risk factor 7, the court examined the definition of ‘grooming’ and concluded that, based on expert evidence, the defendant’s immaturity indicated that he did not engage in grooming behavior. Because the lower courts used an incorrect RAI score due to the risk factor 7 miscalculation, the court reversed the assessment of points under risk factor 7 and remanded the case for a redetermination of the downward departure application under the correct score. The court referenced that ‘The phrase ‘established or promoted for the primary purpose of victimization’ is adopted from the Act itself’.

    Practical Implications

    This case provides guidance on interpreting the specific terms in SORA’s risk factors, such as “sexual conduct” and “grooming,” and clarifies the application of the guidelines. Defense attorneys should carefully review the evidence, including any expert testimony, to challenge the assessment of points under various risk factors, especially those related to the nature of the relationship. Prosecutors must ensure sufficient evidence to support all claimed risk factors. This case reinforces the need for a correct calculation of the RAI and a proper consideration of all factors when deciding a downward departure, including a thorough review of the lower courts’ analysis, and all expert evidence presented.

  • People v. Ford, 24 N.Y.3d 939 (2014): Prison Disciplinary Violations and Sex Offender Treatment Under SORA

    People v. Ford, 24 N.Y.3d 939 (2014)

    Prison disciplinary violations that prevent a defendant from participating in sex offender treatment do not automatically constitute a “refusal” of treatment under the Sex Offender Registration Act (SORA) risk assessment guidelines.

    Summary

    In People v. Ford, the New York Court of Appeals addressed whether a defendant’s prison disciplinary violations, which prevented him from attending sex offender treatment, could be considered a “refusal” of treatment under SORA guidelines. The court held that such violations do not equate to a refusal. The defendant, convicted of sexual abuse, accumulated numerous disciplinary infractions while incarcerated, making him ineligible for treatment. The lower courts assessed points under risk factor 12 for “failure to accept responsibility” due to his inability to participate in treatment. The Court of Appeals reversed, clarifying that “refusal” requires an intentional rejection of treatment, and remanded for a new risk level designation. The decision underscores the specific requirements for assessing points under SORA and the importance of distinguishing between actions that prevent treatment and a direct refusal to participate.

    Facts

    The defendant entered a guilty plea for sexual abuse in the first degree and received a prison sentence. While incarcerated, he committed numerous disciplinary violations, preventing him from participating in sex offender treatment. At his Sex Offender Registration Act (SORA) hearing, the Board of Examiners of Sex Offenders assessed 100 points, recommending a level three designation. The Board assessed 10 points under risk factor 13 for unsatisfactory conduct. The Board recommended an upward departure to level three based on the nature of defendant’s crime, his failure to participate in sex offender treatment, and his lack of remorse for the crime. The Supreme Court assessed an additional 15 points under risk factor 12 for failure to accept responsibility, reasoning that the defendant’s conduct led to his inability to receive treatment, thus increasing his risk level.

    Procedural History

    The Supreme Court assessed the defendant an additional 15 points based on his prison conduct and determined that the defendant was a level three sex offender. The Appellate Division affirmed the Supreme Court’s decision. The New York Court of Appeals granted the defendant’s motion for leave to appeal.

    Issue(s)

    1. Whether prison disciplinary violations that prevent a defendant from participating in sex offender treatment constitute a “refusal” of treatment under SORA risk assessment guidelines.

    Holding

    1. No, because “refusal” requires an intentional rejection of the treatment and the defendant’s conduct did not meet the definition as defined by SORA.

    Court’s Reasoning

    The court reviewed the Sex Offender Registration Act (SORA) guidelines. The guidelines indicate an offender can be assessed additional points if an offender refuses or is expelled from treatment since such conduct is evidence of the offender’s denial and their unwillingness to change their behavior. The court determined that the defendant’s prison disciplinary violations did not constitute a “refusal” of treatment. The court emphasized that a “refusal” implies an intentional rejection of treatment, which was not demonstrated in this case. “Refusal contemplates an intentional explicit rejection of what is being offered.” The court clarified that behavior that simply results in the inability to receive treatment is not the same as refusing treatment, and the lower court erred in its interpretation. Furthermore, the court noted that while the disciplinary violations were relevant, they should not be the basis for assessing points under risk factor 12. The court suggested the prosecutor could seek an upward departure based on the defendant’s disciplinary record.

    Practical Implications

    This case clarifies the interpretation of “refusal” within the context of SORA and provides guidance on the assessment of sex offender risk levels. Specifically, this ruling highlights that actions preventing a defendant from accessing treatment are not equivalent to a refusal to participate. Practitioners must distinguish between a direct refusal of treatment and circumstances that merely preclude participation. The case emphasizes the importance of adhering to the specific criteria outlined in SORA guidelines when assessing risk levels, and not assessing points based on conduct that is not directly tied to a refusal of treatment. Prosecutors can still consider the severity of prison disciplinary records in seeking an upward departure from the standard risk assessment.

  • People v. Gillotti, 23 N.Y.3d 841 (2014): SORA Risk Assessment and Child Pornography Offenses

    People v. Gillotti, 23 N.Y.3d 841 (2014)

    In Sex Offender Registration Act (SORA) cases involving child pornography, courts may assess points under factors 3 (number of victims) and 7 (relationship to victim) based on the number of children depicted and the stranger relationship, respectively; however, a defendant requesting a downward departure need only prove mitigating circumstances by a preponderance of the evidence.

    Summary

    This case addresses whether courts can assess points under SORA guidelines factors 3 and 7 in child pornography cases, and what standard of proof applies to requests for downward departures. The Court of Appeals held that points can be assessed under factors 3 and 7, and that the Sex Offender Registration Board’s (the Board’s) position statement does not prohibit this. The Court also determined that defendants requesting a downward departure must prove mitigating facts by a preponderance of the evidence, not clear and convincing evidence. The Court reasoned this approach best balances the offender’s liberty interests and public safety concerns. The court noted that the guidelines themselves permit the assessment of points under factor 3 in child pornography cases.

    Facts

    Neil Gillotti possessed numerous pornographic videos and images featuring children. He admitted to downloading them as a teenager. George Fazio uploaded child pornography files to a website. Both were convicted and required to register under SORA in New York. The Board prepared risk assessment instruments (RAI) for both, and in both cases, the People requested the court to adjudicate the defendants at a higher risk level by assigning them additional points pursuant to factors that did not form the basis of the Board’s recommendation. Both defendants challenged the imposition of points under factors 3 and 7.

    Procedural History

    In *People v. Gillotti*, the SORA court adjudicated Gillotti a risk level three sex offender, assigning points under factors 3 and 7. The Appellate Division affirmed, requiring clear and convincing evidence for a downward departure. In *People v. Fazio*, the SORA court adjudicated Fazio a risk level two sex offender, including points under factor 3. The Appellate Division affirmed. Both defendants appealed to the Court of Appeals.

    Issue(s)

    1. Whether a SORA court may assess points against a child pornography offender under the plain language of guidelines factor 3, which is based on the number of victims involved in the offender’s crime?

    2. Whether the Board’s position statement prohibits a SORA court from assigning points to an offender under factors 3 and 7?

    3. Whether an offender requesting a downward departure in a SORA case must prove the supporting facts by clear and convincing evidence or by a preponderance of the evidence?

    Holding

    1. Yes, because factor 3 permits scoring points based on the number of different children depicted in the child pornography files.

    2. No, because the Board’s position statement does not bar the assignment of points under factors 3 and 7 in child pornography cases.

    3. Preponderance of the evidence, because that standard best balances the offender’s liberty interests and public safety concerns.

    Court’s Reasoning

    The Court reasoned that children depicted in child pornography are “victims” under SORA. “The whole point of the child pornography statutes is to protect children like these from exploitation by pornographers—an exploitation to which defendant, by consuming the pornographers’ product, contributed.” *Gillotti*, 23 N.Y.3d at 854-855 (quoting *People v Johnson*, 11 NY3d 416 (2008)). Factor 3’s plain language allows assessing points when “[t]here were three or more victims.” *Id.* at 855. The Board’s position statement is not binding; it is not an amendment to the guidelines. The Court emphasized that the government has an interest in “the protection of the community against people who have shown themselves capable of committing sex crimes” and the legislature sought to carefully guard a defendant’s liberty interest. *Id.* at 863. “Consistent with that legislative intent and the general practice in civil cases, we hold that a defendant must prove the existence of the mitigating circumstances upon which he or she relies in advocating for a departure by a mere preponderance of the evidence.” *Id.* at 864.

  • People v. Pettigrew, 14 N.Y.3d 406 (2010): Establishing ‘Dangerous Instrument’ in Sex Offender Risk Assessment

    People v. Pettigrew, 14 N.Y.3d 406 (2010)

    In the context of Sex Offender Registration Act (SORA) hearings, displaying a gun and threatening its use constitutes clear and convincing evidence that the defendant was armed with a dangerous instrument, regardless of whether the gun is proven to be loaded or operable.

    Summary

    The New York Court of Appeals addressed whether displaying a gun and threatening to use it during a rape constituted clear and convincing evidence that the defendant was armed with a dangerous instrument for SORA risk assessment purposes. The defendant, previously convicted of rape, challenged his Level Three sex offender designation, arguing that the prosecution failed to prove the gun he displayed was loaded and operable. The Court of Appeals affirmed the lower court’s decision, holding that the defendant’s actions met the definition of “dangerous instrument” under SORA guidelines, irrespective of proof of operability.

    Facts

    In 2003, Avery Pettigrew pleaded guilty to first-degree rape. Prior to his release in 2007, a SORA hearing was held to determine his risk level. The Risk Assessment Instrument (RAI) designated him a presumptive Level Three offender. During the rape, Pettigrew told the victim, “If I can’t have you, no one will,” choked her, displayed a gun in his waistband, and threatened to shoot her if she told anyone.

    Procedural History

    At the SORA hearing, Pettigrew disputed the 30 points assessed for being armed with a dangerous instrument, arguing the People didn’t prove the gun was loaded and operable. The Supreme Court rejected his argument and designated him a Level Three offender. The Appellate Division unanimously affirmed that decision. The New York Court of Appeals then reviewed the case.

    Issue(s)

    Whether the People must prove that a gun displayed during the commission of a sex offense was loaded and operable to assess points under factor 1 of the Sex Offender Registration Act (SORA) Risk Assessment Instrument (RAI) for being armed with a dangerous instrument.

    Holding

    No, because displaying a gun and threatening its use during a sex offense constitutes clear and convincing evidence that the defendant was armed with a dangerous instrument, irrespective of whether the gun is proven to be loaded or operable.

    Court’s Reasoning

    The Court of Appeals reasoned that a “[d]angerous instrument means ‘any instrument, article or substance, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury’” (quoting Penal Law § 10.00 [13]). Pettigrew’s display of the gun and threat to shoot the victim constituted clear and convincing evidence that the gun was a dangerous instrument. The Court cited People v. Dodt, 61 N.Y.2d 408, 415 (1984), stating that “a threat to use a gun . . . can only be understood as a threat that the weapon is operable.” The Court emphasized that SORA proceedings are civil in nature and the People must prove the facts supporting the determinations by clear and convincing evidence. However, the Court clarified that the evidence can be derived from the sex offender’s admissions, the victim’s statements, or any other reliable source. The court also noted that if the defendant had used, threatened to use, or attempted to use the gun as a bludgeon, it would clearly qualify as a dangerous instrument.

  • People v. Mingo, 12 N.Y.3d 563 (2009): Admissibility of Hearsay Evidence in Sex Offender Risk Assessments

    People v. Mingo, 12 N.Y.3d 563 (2009)

    Hearsay evidence is admissible in Sex Offender Registration Act (SORA) proceedings if a reasonable person would deem it trustworthy based on the circumstances surrounding its creation.

    Summary

    This case clarifies the standard for admitting hearsay evidence in SORA hearings to determine a sex offender’s risk level. The Court of Appeals held that hearsay is admissible if a reasonable person would deem it trustworthy based on the circumstances surrounding its creation. Internal District Attorney’s office documents may constitute reliable hearsay if a proper foundation is laid, explaining their creation, personnel involved, and sources of information. Without such a foundation, the evidence is inadmissible. The court distinguished this from documents like case summaries or presentence reports, where the foundation is already established by their well-known creation process.

    Facts

    Tyrone Mingo pleaded guilty to rape in 1990. At a 2006 SORA redetermination hearing, he was designated a level two risk. The District Attorney presented internal office documents (Data Analysis Form, Grand Jury Synopsis Sheet, and an Early Case Assessment Bureau Data Sheet) indicating Mingo had threatened the victim with a “chrome strip” or “piece of metal” during the rape. This led to an assessment of 30 points under factor 1 of the Risk Assessment Instrument (RAI), classifying him as a moderate risk. The defense objected to these unsworn, unsigned documents as unreliable hearsay.

    Procedural History

    The Supreme Court relied on the DA’s documents and the indictment to designate Mingo a level two offender. The Appellate Division affirmed, finding the documents constituted reliable hearsay. A dissenting judge argued the DA failed to establish a proper foundation. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether internal documents generated by a District Attorney’s office can be considered “reliable hearsay” and thus admissible in a SORA proceeding to determine a sex offender’s risk level without a proper foundation.

    Holding

    No, because internal documents generated by a District Attorney’s office do not automatically qualify as reliable hearsay in SORA proceedings. A proper foundation is required to establish their trustworthiness based on the circumstances of their creation.

    Court’s Reasoning

    The Court emphasized the importance of an accurate risk assessment in SORA proceedings to protect the public. It established a standard that hearsay is reliable and admissible if a reasonable person would deem it trustworthy based on the circumstances of the proof. The Court acknowledged that internal DA documents are similar to case summaries and presentence reports, but noted a key difference: unlike case summaries and presentence reports, which are created with the explicit understanding they will be used by courts, internal DA documents require a foundation explaining their creation, the personnel involved, and the sources of information. Without this explanation, the documents lack the requisite indicia of reliability. The court stated, “[H]earsay is reliable for SORA purposes—and, therefore, admissible—if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy.” The court remitted the case to allow the District Attorney to establish this foundation.

  • People v. Johnson, 13 N.Y.3d 417 (2009): Interpreting “Directed at a Stranger” in Sex Offender Risk Assessments

    People v. Johnson, 13 N.Y.3d 417 (2009)

    When assessing the risk level of a sex offender, the phrase “directed at a stranger” applies even when the crime involves possessing child pornography of unknown children; however, a court retains discretion to depart from the presumptive risk level indicated by the guidelines if special circumstances warrant a different outcome.

    Summary

    The New York Court of Appeals addressed whether possessing child pornography of unknown children qualifies as a crime “directed at a stranger” under the Sex Offender Registration Act (SORA). Johnson, convicted of attempted promoting a sexual performance by a child, challenged his Level Two designation, arguing that possessing images of strangers shouldn’t automatically increase his risk level. The Court held that the crime was indeed directed at strangers, but emphasized that courts have the discretion to depart from the presumptive risk level based on individual case circumstances. This decision clarifies the application of SORA guidelines while preserving judicial flexibility in risk assessment.

    Facts

    Defendant Johnson possessed pornographic images of children who were strangers to him. He pleaded guilty to attempted promoting a sexual performance by a child and was sentenced to probation. Due to his conviction, he was required to register as a sex offender under SORA. The Board of Examiners of Sex Offenders (Board) recommended a Level Two designation, based in part on Risk Factor 7, which assigns points if the crime was “directed at a stranger.” County Court adopted the Board’s recommendation.

    Procedural History

    The County Court initially designated Johnson as a Level Two offender. The Appellate Division affirmed the County Court’s decision. The New York Court of Appeals granted leave to appeal to consider the interpretation of Risk Factor 7.

    Issue(s)

    Whether, for the purpose of sex offender risk assessment under SORA, the crime of possessing child pornography is “directed at a stranger” when the images depict children unknown to the possessor.

    Holding

    Yes, because the crime of possessing child pornography exploits the children depicted, making them victims of the possessor’s actions, even if there is no prior relationship. However, the court is not bound by the Board’s recommendation and may depart from the presumptive risk level if warranted by special circumstances.

    Court’s Reasoning

    The Court reasoned that the plain language of Factor 7 includes crimes “directed at a stranger.” While acknowledging that the typical understanding of stranger-directed sex crimes involves direct contact, the Court emphasized that child pornography statutes aim to protect children from exploitation. By consuming the pornographer’s product, the defendant contributes to this exploitation, making the children victims. The Court referenced Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 748 [2007] and New York v Ferber, 458 US 747, 759 10 [1982] to support the victim status of children in child pornography cases.

    However, the Court also clarified that the Board’s risk assessment is only “presumptive,” and that both the Board and the court have discretion to depart from it if special circumstances warrant. The Court stated, “the Board or court may depart from it if special circumstances warrant” (Guidelines at 4). It recognized that “an objective instrument, no matter how well designed, will not fully capture the nuances of every case” (id.). The Court cited Matter of VanDover v Czajka, 276 AD2d 945, 946 [3d Dept 2000] and Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 892 [4th Dept 1998] to reinforce that the Board serves only in an advisory capacity. In this specific case, the defendant did not argue for a downward departure, limiting the court’s review to the legal arguments presented.

  • People v. Guynup, 9 N.Y.3d 793 (2008): Requirement for Factual Findings in Sex Offender Risk Assessments

    People v. Guynup, 9 N.Y.3d 793 (2008)

    A sentencing court must articulate specific findings of fact and conclusions of law when assessing points under the Sex Offender Registration Act, particularly regarding the relationship between the offender and the victim.

    Summary

    Guynup pleaded guilty to third-degree rape for engaging in sexual intercourse with a 16-year-old when he was 31. At a SORA hearing, the court assessed 20 points for risk factor 7, pertaining to the relationship between the offender and victim, thereby designating him a level two sex offender. The Court of Appeals reversed, holding that the sentencing court failed to adequately explain its reasoning for assigning points based on the nature of the relationship between the defendant and the victim. The case was remitted for the court to clarify its factual findings and legal conclusions.

    Facts

    Defendant Guynup, age 31, admitted to having sexual intercourse with a 16-year-old victim, leading to a guilty plea for third-degree rape.
    At the SORA hearing, he conceded the initial risk assessment score of 70 points.
    The dispute centered on risk factor 7: whether the crime targeted a stranger or someone whose relationship was established for victimization.
    The County Court assessed 20 points under risk factor 7, increasing his risk level.

    Procedural History

    The County Court designated Guynup a level two sex offender.
    The Appellate Division affirmed the County Court’s decision.
    The New York Court of Appeals reversed the Appellate Division’s order and remitted the case to the County Court.

    Issue(s)

    Whether the County Court adequately set forth the factual findings and legal conclusions supporting its decision to assess 20 points under the risk factor pertaining to the defendant’s relationship with the victim, as required by Correction Law § 168-n (3)?

    Holding

    No, because Correction Law § 168-n (3) requires the sentencing court to clearly state the factual and legal basis for its determinations, and the County Court failed to adequately explain why it assessed points based on the relationship between Guynup and the victim.

    Court’s Reasoning

    The Court of Appeals emphasized the importance of adhering to the requirements of Correction Law § 168-n (3), which mandates that the sentencing court “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” The court noted the lower court’s failure to articulate the evidence that supported its finding that the victim was a stranger or that the defendant established or promoted the relationship for the primary purpose of victimization. The court stated that, “In reaching its decision, which must be based on clear and convincing evidence, the judge “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations” (Correction Law § 168-n [3]).” The absence of such specific findings hindered meaningful appellate review and undermined the integrity of the risk assessment process. The Court remitted the case to the County Court to remedy this deficiency and provide a clear explanation of its reasoning. This case highlights the necessity of a transparent and well-supported SORA determination, especially when assessing factors related to the offender’s relationship with the victim. Practically, this means that courts must document the specific evidence and rationale that lead them to conclude that a victim was a stranger or targeted for victimization when assigning risk levels under SORA. This is essential to ensure accurate classifications and to provide a clear record for appellate review.

  • People v. Haney, 75 N.Y.2d 944 (1990): Establishing Criminal Negligence in Vehicular Homicide

    People v. Haney, 75 N.Y.2d 944 (1990)

    To be found guilty of criminally negligent homicide, a driver’s failure to perceive a substantial and unjustifiable risk of death from operating a motor vehicle must be a gross deviation from the ordinary standard of care.

    Summary

    The New York Court of Appeals affirmed the defendant’s conviction for criminally negligent homicide, holding that sufficient evidence existed to prove the defendant failed to perceive a substantial and unjustifiable risk when operating his vehicle, constituting a gross deviation from the standard of care. The defendant was driving at an excessive speed, ignored warnings to slow down, and struck a State Trooper. Unlike a related case decided the same day, *People v. Boutin*, the court found ample evidence of criminally culpable, risk-creating conduct by the defendant.

    Facts

    The defendant was driving at least 90 miles per hour in a 55 miles per hour zone. He was aware that he was traveling through a police radar area. The defendant observed a line of traffic backed up ahead on the Thruway, with cars halted on the side of the road. Despite a warning from his passenger to reduce speed, the defendant accelerated his vehicle. Subsequently, the defendant struck and killed a State Trooper.

    Procedural History

    The defendant was tried and convicted of criminally negligent homicide. The Appellate Division affirmed the conviction. The case was then appealed to the New York Court of Appeals.

    Issue(s)

    Whether sufficient evidence existed to support the jury’s verdict finding the defendant guilty of criminally negligent homicide based on his operation of a motor vehicle.

    Holding

    Yes, because the evidence at trial, viewed in the light most favorable to the prosecution, sufficiently demonstrated that the defendant failed to perceive a substantial and unjustifiable risk that death would result from his operation of the motor vehicle and that this failure was a gross deviation from the ordinary standard of care.

    Court’s Reasoning

    The court applied Penal Law §§ 125.10 and 15.05 (4), referencing the standard for criminally negligent homicide, which requires a failure to perceive a substantial and unjustifiable risk, constituting a gross deviation from the standard of care. The court distinguished this case from *People v. Boutin*, a case decided the same day, where the evidence of risk-creating conduct was insufficient. In *Haney*, the court found ample evidence of “criminally culpable risk-creating conduct.” The court emphasized the defendant’s excessive speed, awareness of the radar area, observation of stopped traffic, disregard for passenger warnings, and ultimate striking of the State Trooper as factors supporting the jury’s verdict. The court stated that the evidence, when viewed in the light most favorable to the People (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932), is sufficient to support the jury’s verdict finding defendant guilty of criminally negligent homicide for failing to perceive a substantial and unjustifiable risk that death would result from his operation of a motor vehicle when that failure was a gross deviation from the ordinary standard of care (see, Penal Law §§ 125.10, 15.05 [4]; People v Ricardo B., 73 NY2d 228, 236).