This appeal addressed whether the defendant Patrick Asaro’s convictions for manslaughter and assault, both in the second-degree, were supported by sufficient evidence. Asaro was driving a modified hotrod with four passengers on a rural two-lane road when he suddenly stopped his car, then quickly accelerated over the speed limit. Asaro crossed the lane and struck an oncoming car, killing the driver and injuring both his and the other car’s passengers. Witnesses testified seeing Asaro drinking at a party and appearing intoxicated prior to the accident.
Asaro’s blood tested negative for alcohol but initially confirmed the presence of marijuana, though a second test by another lab did not detect any marijuana.
However, the toxicologist explained that the absence of marijuana could have resulted from the gap in time between the first and second tests. A state police expert in the field of collision reconstruction testified that he performed calculations that concluded Asaro was driving at a minimum of 94 mph. Unfortunately, the police witness admitted the notes he used to make the calculations had been lost and he could not replicate them. A passenger in Asaro’s car also testified to seeing the speedometer at 130 mph.
The jury convicted Asaro on a number of charges, including second-degree manslaughter and four counts of second-degree assault, which Asaro appealed. On appeal, he challenged the mens rea of recklessness for each conviction. Asaro contended that, at most, he was criminally negligent and that the counts should be reduced to negligent homicide and third-degree assault. The Court had previously held that speeding alone was insufficient to establish “recklessness” and that an additional affirmative act was required.
On this appeal, the Court found that there was evidence that Asaro did more than simply drive above the speed limit. The testimony established that Asaro stopped his car in the middle of the road and accelerated before crossing the line into oncoming traffic. Moreover, although the jury acquitted Asaro of driving while ability impaired, there was evidence he had been drinking alcohol and smoking marijuana prior to the accident. The Court found that Asaro had engaged in conduct necessary to establish an additional affirmative act—particularly disregarding warnings made by his own passengers about his speed—and that Asaro acted recklessly.
Finally, Asaro also contended he was entitled to a new trial because the trial court erred when it did not strike the portion of the accident reconstruction expert’s testimony based on his missing notes. However, Asaro asked the trial court to strike all of the expert’s testimony rather than a specific portion, and, under those circumstances, the Court could not find that the trial court abused its discretion in denying Asaro’s request.
21 N.Y.3d 677, 2013 N.Y. Slip Op. 06805