SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

461 

KA 09-00607 

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

HERMAN H. BANK, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John J.

Connell, J.), rendered February 27, 2009. The judgment convicted

defendant, after a nonjury trial, of manslaughter in the second degree

(two counts), vehicular manslaughter in the first degree, vehicular

manslaughter in the second degree (two counts), vehicular assault in

the second degree, driving while ability impaired by drugs, and

one-way violation. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing those parts convicting

defendant of two counts of vehicular manslaughter in the second degree

and one count of driving while ability impaired by drugs and

dismissing counts four, five, and seven of the indictment, and as

modified the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a nonjury verdict of, inter alia, two counts of vehicular

manslaughter in the second degree (Penal Law § 125.12 [1]), and one

count each of vehicular manslaughter in the first degree (§ 125.13

[4]) and driving while ability impaired by drugs (Vehicle and Traffic

Law § 1192 [4]). Defendant contends that he was denied effective

assistance of counsel because defense counsel pursued a hopeless

defense and, in any event, failed to call an expert who could provide

a proper opinion in support of that defense. We reject that

contention.

This prosecution arises from an incident in which defendant drove

the wrong way on a divided highway, eventually colliding with a

vehicle proceeding in the proper direction. The collision resulted in

the deaths of two occupants of the other vehicle and injuries to a

third. Defendant was found trapped in the driver’s seat of his

vehicle, from which it took first responders and ambulance crew
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members more than an hour to remove him. A sample of defendant’s

blood was obtained pursuant to a court order, and an analysis of it

revealed, among other things, the presence of cocaine and several of

its metabolites. The People’s expert toxicologist opined that

defendant had a “significant concentration” of cocaine in his system

at the time he operated the vehicle. The expert testified that she

had seen “a great many cocaine deaths that are due to” the presence of

cocaine at such a concentration.

At trial, defendant called an expert pharmacological witness, who

opined that defendant was unable to appreciate the nature and

consequences associated with ingesting cocaine and driving. After

noting that defendant had been diagnosed as suffering from bipolar

disorder and that he was prescribed medication therefor, the expert

opined that defendant’s failure to take the prescribed medication

predisposed him to enter the manic or hypomanic phase of his bipolar

disorder. The expert further noted that one of the medications

recently prescribed to defendant was now counterindicated for people

who had bipolar disorder because of the drug’s tendency to cause such

people to enter a manic phase. The expert opined that defendant would

have been unable to appreciate the risks inherent in behavior such as

taking cocaine and driving if he were in the manic or hypomanic phase

of his bipolar disorder. The expert testified that she relied upon

diagnoses in defendant’s medical records in determining that he

suffered from bipolar disorder, but that she was not a psychological

expert and thus could not form an opinion whether defendant was

suffering from the disorder when he operated the vehicle.

We reject defendant’s contention that he was denied effective

assistance of counsel by defense counsel’s choice to pursue a defense

based on mental disease or defect and by defense counsel’s failure to

call a psychological or psychiatric expert in support of that defense. 

The defense of mental disease or defect, insofar as relevant here, “is

an affirmative defense [requiring proof] that when the defendant

engaged in the proscribed conduct, he lacked criminal responsibility

by reason of mental disease or defect. Such lack of criminal

responsibility means that at the time of such conduct, as a result of

mental disease or defect, he lacked substantial capacity to know or

appreciate . . . [t]he nature and consequences of such conduct” (Penal

Law § 40.15 [1]). With respect to defendant’s contention that defense

counsel was ineffective because “defense counsel should have simply

put the [P]eople to their proof” rather than attempting to present an

affirmative defense without an appropriate expert, it is well settled

that, “[t]o prevail on a claim of ineffective assistance of counsel,

it is incumbent on defendant to demonstrate the absence of strategic

or other legitimate explanations” for defense counsel’s allegedly

deficient conduct (People v Rivera, 71 NY2d 705, 709; see People v

Benevento, 91 NY2d 708, 712). In addition, a reviewing court must

“avoid both confusing true ineffectiveness with mere losing tactics

and according undue significance to retrospective analysis” (People v

Baldi, 54 NY2d 137, 146; see Benevento, 91 NY2d at 712; People v

Kurkowski, 117 AD3d 1442, 1443, lv denied 16 NY3d 896; see also People

v McGee, 20 NY3d 513, 521; People v Satterfield, 66 NY2d 796, 798). 

“The fact that an attorney chooses to rely upon an unsuccessful
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defense to the exclusion of another available defense does not mean

that the attorney’s representation was ineffective” (People v

Robinson, 156 AD2d 974, 974, lv denied 75 NY2d 923; see People v Lane,

60 NY2d 748, 750). 

Here, defense counsel diligently presented and pursued the

defense that defendant was not guilty by reason of mental disease or

defect. In support of that defense, he made cogent opening and

closing statements, cross-examined the People’s witnesses, and offered

expert testimony. Furthermore, defendant’s contention that defense

counsel would have had a greater likelihood of success if he had put

the prosecution to its proof rather than pursue the affirmative

defense is without foundation in light of the overwhelming quantity

and quality of the proof presented by the People. Consequently, we

agree with the People that defendant failed to establish “ ‘the

absence of strategic or other legitimate explanations’ for [defense]

counsel’s alleged shortcomings” in pursuing the affirmative defense

(Benevento, 91 NY2d at 712; see People v Roman, 60 AD3d 1416, 1417-

1418, lv denied 12 NY3d 928; see also People v Morgan, 96 AD3d 1418,

1419, lv denied 20 NY3d 987).

Defendant also failed to establish that defense counsel was

ineffective in choosing to present the affirmative defense through a

pharmacological expert rather than a psychological or psychiatric

expert. “It is well settled that the failure to call a particular

witness does not necessarily amount to ineffective assistance of

counsel” (People v Muller, 57 AD3d 1113, 1114, lv denied 12 NY3d 761;

see People v Ariosa, 100 AD3d 1264, 1266, lv denied 21 NY3d 1013),

especially where, as here, there is “no proof indicating a significant

likelihood that an additional expert would have reached an opinion

substantially inconsistent with the People’s experts” (People v

Venkatesan, 295 AD2d 635, 637, lv denied 99 NY2d 565, cert denied 549

US 854), all of whom opined that defendant was acting under the

influence of a crack cocaine binge rather than a phase of his bipolar

disorder. The choice of expert to support the defense “reflects a

reasonable and legitimate strategy under the circumstances and

evidence presented, even if unsuccessful” (Benevento, 91 NY2d at 713). 

Consequently, viewing the evidence, the law and the circumstances of

this case, in totality and as of the time of the representation, we

conclude that defendant received meaningful representation (see

generally Baldi, 54 NY2d at 147).

Finally, as the People correctly concede, counts four, five and

seven must be dismissed as lesser inclusory counts of count three,

vehicular manslaughter in the first degree. Initially, we note that

defendant’s failure to preserve the issue for our review is of no

moment because preservation is not required (see People v Moore, 41

AD3d 1149, 1152, lv denied 9 NY3d 879, reconsideration denied 9 NY3d

992). With respect to the merits, “concurrent counts are inclusory

when the offense charged in one is greater than that charged in the

other and when the latter is a lesser offense included within the

greater” (People v Scott, 61 AD3d 1348, 1350, lv denied 12 NY3d 920,

reconsideration denied 13 NY3d 799; see CPL 300.30 [4]; People v

Miller, 6 NY3d 295, 300). Thus, where, as here, “it is impossible to
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KA 09-00607 

commit a particular crime without concomitantly committing, by the

same conduct, []other offense[s] of lesser grade or degree, the latter

[are], with respect to the former, . . . lesser included offense[s]”

(Miller, 6 NY3d at 301 [internal quotation marks omitted]). Because

it is impossible to commit the crime of vehicular manslaughter in the

first degree under Penal Law § 125.13 (4), without concomitantly

committing the crime of vehicular manslaughter in the second degree

under Penal Law § 125.12, or without concomitantly committing the

crime of, inter alia, driving while ability impaired by drugs under

Vehicle and Traffic Law § 1192 (4), the latter two crimes are

inclusory concurrent counts of the former crime. We therefore modify

the judgment by dismissing the three counts of the indictment charging

the latter two crimes.

Entered: June 12, 2015 Frances E. Cafarell

Clerk of the Court