Appellate judges expressed skepticism Wednesday of an argument that a Riverhead man wasn’t acting recklessly the night he drank until his blood-alcohol content was almost triple the legal standard, speeded and crashed into a car, killing the woman about to get into it.
Joseph Perez, now 33, was convicted in June 2015 of aggravated vehicular homicide, second-degree manslaughter and second-degree vehicular manslaughter in the death of Donna Sartori, 56, of Middle Island.
At the time of the crash in the early hours of Jan. 5, 2014, Sartori was delivering newspapers in Hampton Bays with her shih tzu, Bam Bam. The little dog ran away and was never found.
Felice Milani of the Legal Aid Society argued that a variety of errors led to an improper conviction, but the justices of the Appellate Division, Second Department in Brooklyn focused on her contention that prosecutors didn’t prove recklessness, an element of the top count.
Milani noted that under the law, neither intoxication nor speeding alone are enough to establish recklessness.
But Justice Leonard Austin said the case as a whole seemed to exude recklessness.
Perez, who sometimes drank until he blacked out, downed a bottle of Hennessy cognac at home even before he went out to Club Dream in Hampton Bays with his friends, according to trial testimony, and they drank until the club closed at 4 a.m. After the crash, Perez had a blood-alcohol content of 0.23 percent.
Perez hit a car in the parking lot, then abandoned his friends — and his wallet — and drove his pickup truck into the village, where he hit one parked vehicle before hitting Sartori’s car as she was getting back into it to continue delivering newspapers to shops.
“When somebody knows he could black out when he drinks, that could certainly raise it to a reckless standard,” Austin said. “At what point is it enough?”
Milani said the evidence of speeding was weak and Perez left the club because he felt threatened.
“You have a whole series of events here,” Austin said. “You can’t look at each one in a vacuum.”
Assistant District Attorney Marion Tang said the case is not a difficult one.
“This is an overwhelming case,” she said. Perez’ speed is clear in surveillance video from businesses near the crash scene, and the combination of his excessive intoxication and two collisions before he hit Sartori’s car establishes his recklessness, she said.
The justices questioned Tang about another issue Milani raised, which is that an accident reconstruction expert adjusted his findings before the trial and prosecutors failed to inform the defense about that. Milani said the trial judge, state Supreme Court Justice Fernando Camacho, should have granted a defense request for a mistrial because of that.
Tang said the change in the expert’s findings “made absolutely no difference to his [final] opinion” of the crash. And it changed nothing about the case as a whole, she said.
“The defendant had so many opportunities during his binge drinking to prevent this,” Tang said.
Perez is serving 12 1⁄2 to 25 years in prison. The appellate court will rule on the case in a few weeks.