PEOPLE v. CZARNECKI (1999)

Defendant appeals from a judgment convicting him upon a jury verdict of criminally negligent homicide (Penal Law § 125.10), two counts of assault in the third degree (Penal Law § 120.00[3] ), driving while ability impaired (Vehicle and Traffic Law § 1192[1] ) and two other motor vehicle violations arising from defendant's failure to stop at a stop sign.   Defendant's vehicle collided with another vehicle, killing the driver and injuring the two passengers.   A blood test taken approximately 11/212 hours after the accident revealed that defendant's blood alcohol content was .08.   A pharmacologist who testified on behalf of the People opined that defendant's blood alcohol content at the time of the collision would have been between .09 and .12.

 Supreme Court properly admitted evidence concerning defendant's activities in the 24-hour period preceding the accident, i.e., that defendant drank heavily during that period, ate little and had interrupted sleep.   That evidence was relevant to the issues whether defendant engaged in a course of conduct that created a risk of death that he failed to perceive, and whether that failure constituted a gross deviation from reasonable care (see, People v. Boutin, 75 N.Y.2d 692, 696, 556 N.Y.S.2d 1, 555 N.E.2d 253).

 By failing to object to the court's supplemental charge on criminal negligence, defendant failed to preserve for our review his present argument that the supplemental charge permitted the jury to convict defendant based solely on the occurrence of the accident (see, People v. Robinson, 88 N.Y.2d 1001, 1001-1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266;  see also, People v. McCall, 88 N.Y.2d 838, 840, 644 N.Y.S.2d 482, 666 N.E.2d 1355).   Reversal is not warranted as a matter of discretion in the interest of justice because the charge as a whole adequately explained the concept of criminal negligence (see, People v. Ladd, 89 N.Y.2d 893, 895, 653 N.Y.S.2d 259, 675 N.E.2d 1211).   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: