People v. Rooney , 57 N.Y.2d 822 ( 1982 )

57 N.Y.2d 822 (1982)

The People of the State of New York, Respondent,
v.
Michael Rooney, Appellant.

Court of Appeals of the State of New York.

Argued September 1, 1982. Decided October 7, 1982.

Janet Cunard for appellant.

Mario Merola, District Attorney (Peter D. Coddington and Alan D. Marrus of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

The defendant was tried on an indictment charging him with criminally negligent homicide in that he "operated a motor vehicle at an excessive rate of speed, on the wrong side of the road while intoxicated and struck another vehicle" causing the death of another person. He was also charged in separate counts with driving while under the influence of alcohol. The defendant requested the court to charge the jury that he could not be found guilty of criminally negligent homicide unless it found that he had committed all of the acts mentioned in the indictment. The court refused the charge and the jury returned a verdict finding him not guilty of driving while under the influence of alcohol but guilty of criminally negligent homicide.

The court did not err in refusing to charge the jury as the defendant requested. Not every fact mentioned in an indictment is essential to establish the defendant's guilt of the crime charged, and thus it is not necessary in every case that the People prove all acts alleged in the indictment when the remaining acts alleged are sufficient to sustain a conviction. In this case the jury could find that the defendant was criminally negligent when he drove the vehicle on the wrong side of the road while speeding even though he may not have been intoxicated at the time.

Order affirmed in a memorandum.