                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 23, 2014                    104579
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MICHAEL M. SMITH,
                    Appellant.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                              __________


     Richard E. Cantwell, Plattsburgh, for appellant.

      Kristy L. Sprague, District Attorney, Elizabethtown
(Michael P. Langey of counsel), for respondent.

                              __________


Clark, J.

      Appeal from a judgment of the County Court of Essex County
(Meyer, J.), rendered September 16, 2010, upon a verdict
convicting defendant of the crime of criminally negligent
homicide.

      While hunting on the morning of November 15, 2008 in the
Town of Keene, Essex County, defendant shot and fatally wounded
his long-time friend and hunting partner, Leo Hickey. Defendant
was subsequently indicted on one count of criminally negligent
homicide. After being convicted by a jury, defendant was
sentenced to a prison term of 1a to 4 years and was ordered to
pay restitution. Defendant now appeals.

     First, viewed in the light most favorable to the People
                                   -2-                104579

(see Jackson v Virginia, 443 US 307, 319 [1979]; People v Smith,
6 NY3d 827, 828-829 [2006], cert denied 548 US 905 [2006]), the
evidence was legally sufficient to support defendant's
conviction. It was uncontroverted at trial that defendant,
Hickey and the two other men in their hunting party on the day in
question were all seasoned, licensed hunters who were familiar
with the area in which they were hunting, having hunted together
in the same location on previous occasions. The weather that
morning was misty, rainy and foggy and all four men were dressed
in brown camouflage without any hunter orange safety gear.

      While acting as a watcher on the second drive1 of the
morning, defendant testified to taking a position approximately a
quarter to a half of a mile away from Hickey, who was acting as a
driver. Defendant recounted that, after a few minutes of
arriving at his position, he saw a six or eight-point buck,
approximately 80 to 100 yards away, coming towards him.2
Although he was able to observe the deer for about 30 seconds,
defendant explained that he did not shoot at it because he did
not have a killing shot. After about three to five minutes and
while looking through a 16 to 20-inch clearing in the thick
brush, defendant saw what he thought was the deer reappearing,
although he testified to only seeing its head, left antler and
maybe the lower base of its neck. Then, while crouching with his
elbows on his knees and the rifle approximately three feet off
the ground, defendant fired a single shot from an estimated 30 to




    1
        In hunting terms, a "drive" is a technique by which the
hunters set up a watch ground in a location where deer are
anticipated to come out of the woods. The "drivers" attempt to
push the deer in the direction of the watch ground toward their
awaiting fellow hunters, designated as "watchers."
    2
        It   should be   noted that, on cross-examination, the People
confronted   defendant   with the statement that he gave to a state
trooper at   the scene   in which he stated that he waited 20 to 30
minutes at   his watch   location before first sighting the deer.
                               -3-                104579

35 yards away.3 Approximately five minutes later, defendant
approached the area where he hoped to find a dead deer and
instead found Hickey, unresponsive with a bullet wound to his
face. Pathologist Francis Varga, who performed an autopsy on
Hickey, testified that Hickey suffered a gunshot wound below his
right eye which resulted in his death. Varga's additional
testimony regarding the recovery of a flattened bullet fragment
from the base of Hickey's skull supported the uncontested theory
that the bullet fired by defendant hit a tree sapling before
striking Hickey.

      Photographs of the scene taken shortly after the incident
and introduced into evidence demonstrate the unlikely possibility
that defendant could have had a clear view when firing his rifle
that morning. The photos taken by investigators, who also
testified at trial, illustrate a nearly monochromatic scene of a
brown and dreary landscape dense with brush and lingering fog.
Specifically, the photos taken from defendant's position
demonstrate that an object moving approximately 150 feet away
would be indistinguishable from its surroundings unless it was
brightly colored.

      While defendant argues that there was no proof that his
conduct rose to the level of criminal negligence necessary to
support his conviction, we find a valid line of reasoning and
permissible inference which could lead a rational person to the
conclusion reached by the jury and which would satisfy the proof
for every element of criminally negligent homicide (see Penal Law
§§ 15.05 [4]; 125.10; People v Cabrera, 10 NY3d 370, 375-376
[2008]; People v Conway, 6 NY3d 869, 871-872 [2006]).
Defendant's conduct that morning – i.e., participating in a
hunting drive in the misty rain and fog with poor visibility
conditions and shooting a high-powered rifle through a small
opening in thick brush without a clear shot while knowing that
Hickey, dressed head-to-toe in brown camouflage without any
hunter orange, was moving toward him – created a substantial and


     3
        Defendant was using a New England Arms single-shot .243
caliber hunting rifle and 100-grain projectile with muzzle
velocity of 3,860 feet per second.
                              -4-                104579

unjustifiable risk of death and his failure to perceive this risk
was a "gross deviation from the standard of care that a
reasonable person would observe in the situation" (Penal Law
§ 15.05 [4]) sufficient to justify the finding of criminally
negligent homicide (see Penal Law § 125.10; People v Boutin, 75
NY2d 692, 695-696 [1990]; People v Guglielmo, 30 AD3d 830, 832
[2006], lv denied 7 NY3d 813 [2006]).

      We also find without merit defendant's argument that there
was legally insufficient evidence to establish a direct cause
between his shot and Hickey's death because the bullet hitting a
sapling could have caused a shift in its trajectory. The mere
fact that the bullet may have been deflected would not absolve
defendant of responsibility under the aforementioned standard
inasmuch as he engaged in some other risk-creating behavior (see
People v Boutin, 75 NY2d at 695-696; compare People v Ballenger,
106 AD3d 1375, 1376-1379 [2013], lv denied 22 NY3d 995 [2013]).
By firing his rifle into an area dense with trees and brush in
poor visibility conditions, we find that the jury could have
reasonably concluded that defendant failed to perceive the risk
that the bullet could change course upon striking any number of
branches or saplings located between him and his intended target
and thereby strike one of his unseen camouflaged companions in
the vicinity, causing his death.

      Further, upon our independent review of the evidence, we
find no basis to conclude that the verdict was against the weight
of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d
342, 348-349 [2007]; People v Romero, 7 NY3d 633, 643 [2006];
People v Bleakley, 69 NY2d 490, 495 [1987]). Nor are we
persuaded that County Court erred in denying defendant's motion
to set aside the verdict (see CPL 330.30 [1]; People v Carter, 63
NY2d 530, 537 [1984]; see also People v Hines, 97 NY2d 56, 61
[2001]).

      We also find no merit in defendant's argument that County
Court abused its discretion in imposing the maximum allowable
sentence of 1a to 4 years (see Penal Law § 70.00 [2] [e]; People
v Braden, 173 AD2d 1078, 1078-1079 [1991]; People v Andrews, 115
AD2d 807, 807 [1985]) or that any extraordinary circumstances
exist warranting a reduction in the interest of justice (compare
                              -5-                  104579

People v Wilt, 18 AD3d 971, 973 [2005], lv denied 5 NY3d 771
[2005]). We do, however, find merit in defendant's contention
that County Court erred in imposing a 10% surcharge upon the
amount of restitution to be collected from him. Pursuant to
Penal Law § 60.27 (8), when restitution is imposed upon a
defendant, the court shall impose no more than a 5% surcharge for
monitoring and collection of the payment, unless the designated
agency demonstrates, by way of affidavit, that the actual cost in
a particular case exceeds 5% of the entire amount of the payment
or the amount actually collected. Here, as conceded by the
People, in the absence of an affidavit indicating that the actual
cost of collection exceeded 5%, the surcharge imposed upon
defendant should be reduced (see People v Rawdon, 296 AD2d 599,
600 [2002], lv denied 98 NY2d 771 [2002]; People v Arquette, 281
AD2d 652, 652-653 [2001]).

     Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
reducing the surcharge on the $16,330 amount of restitution from
10% to 5% and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
