Sentencing

Lima man gets seven year assault sentence for 2009 crash

Unless his appeal is successful, Kury Spencer will spend seven years in state prison for causing a July 4, 2009 head-on collision that shattered the bodies of an elderly Livonia couple.

Livingston County Judge Dennis Cohen issued Spencer the maximum allowable sentence for assault in the second degree at a hearing Thursday, Jan. 13.

Spencer was witnessed by dozens of drivers swerving from shoulder-to-median southward on I-390 from Brighton to the Route 5&20 exit in the Town of Avon. The Cadillac Escalade he was driving plowed into his victims James and Anita Stefano, both in their 70s, leaving them with life-threatening injuries.

During the trial last month, District Attorney Tom Moran characterized the crash as a drug abuse case and sought to prove that Spencer was high on dextromethorpan, the active ingredient in the cough suppressants Delsym. Before County judge issued his sentence, Moran registered his frustration that he could not prosecute Spencer for aggravated vehicular assault — which includes the presence of alcohol or illegal drugs and involves two or more victims.

“But for a loophole in the law, he would stand before you a defendant of aggravated vehicular assault, a C-Felony with a maximum sentence of 15 years,” said Moran. “That charge only includes alcohol or controlled substances, but people get high on all kinds of other things. Our state legislature needs to address this.”

In his bid to convince the judge to issue a lighter sentence, defense attorney Greg McCaffrey rejected Moran’s claims. “This is not about a failure of the New York legislature. There is no law against ingesting dextromethorphan and there’s no evidence he abused it,” he said.

“What this sentencing should be about is how the jury acquitted Kury of 90 percent of his original indictment,” McCaffrey said. “We’re left with two traffic tickets and two lesser charges.”

The jury was presented with two types of Assault I charges to choose from — one based on intent to harm the victims and the other based on “depraved indifference to human life.” The jury found Spencer not guilty of both. The jury also found Spencer not guilty of attempted assault in the first degree and reckless endangerment in the first degree because those charges did not take place in Livingston County. Two identical charges were thrown out midway through the trial because the incident in question also took place in Monroe County.

The victims’ son

Sentencing hearings give the victims of crimes the chance to confront the criminal to underscore the effects the crime has had on their lives. On Thursday, however, the Stefanos asked their oldest son James Jr. to speak in their place.

“Unfortunately, my mother Anita can’t be here because of the extreme pain she’s suffered over the last two weeks. She can’t walk, not at all.”

In detail, Stefano described the damage done to his parents’ bodies. James had his hip socket shattered. “He can’t sit down for more than 30 minutes without being in excruciating pain. There is permanent nerve damage that causes swelling in his right foot.”

Anita Stefano can no longer bend her knees because of rods in her femurs, said James Jr. Judge Cohen later pointed out that she also has scar tissue from a tracheotomy that makes it hard for her to swallow and that she has a mesh filter near her heart to catch clots in her bloodstream. Moran, in his statements, mentioned Anita’s two broken femurs that had ripped through her skin. Her injuries were so critical, she had to be medevaced to Strong Hospital.

“Pain follows them into the night,” said James Jr. “They can’t sleep in a comfortable position and they’re often woken up in the middle of the night.”

“In my mother’s words, ‘I’ve been through hell and then some. The medical costs have been staggering. Kury Spencer robbed us of our good health, the best years of our life and our money.”

James Jr. described the first critical days at Strong Memorial Hospital when it was unsure if his parents would survive. “My mother was literally helpless from the extent of her injuries. She had to be given 30 units of blood. My father was broken from top to bottom, crying out whenever anyone had to move him.”

James, Jr. then directed his attention to the defendant, who has maintained throughout the trial that the crash was an accident. “In a TV interview, he asked my parents to find a way to forgive him, but he has never taken responsibility for his actions,” he said. “Kury, I believe you have to sincerely admit you did something wrong before you can ask forgiveness.”

History of mental illness and drug use

Spencer and his defense attorney spent the bulk of the trial defending against Moran’s charges of over-the-counter drug abuse. However, motions filed before the trial and in statements McCaffrey and Judge Cohen made at the sentencing hearing tell a different story. They show Spencer as mentally ill and dependent upon several medications to maintain a safe, socially-acceptable level of behavior.

“Kury has been diagnosed with schizoaffective disorder with manic episodes that include delusions and hallucinations,” said McCaffrey. “A prison sentence would warehouse him for something that is nothing more than an accident. It was not criminal.”

McCaffery listed times when Spencer voluntarily entered treatment programs — both residential and out-patient. Spencer was able to complete an associate’s degree and was accepted at SUNY Geneseo before the accident.

“He thrives on medication, but he is under stress and agony if he’s off his medication for a day,” said McCaffrey. “As long as he is on his meds, he is a fantastic addition to society and no threat to anyone.”

Judge Cohen’s assessment of Spencer’s condition was less optimistic.

“The defendant is incapable of administering his own medications, even when they’re organized by someone else,” he said, referring to a counselor’s report. “He becomes manic within 24 hours of going off his medication. He experiences mania, grandiosity, euphoria and lack of impulse control.”

Cohen listed times Spencer had admitted to using drugs. Spencer dropped acid five times in high school. He ascribes to a type of Hinduism which teaches that pot and hashish can be used to achieve higher levels of consciousness. Spencer once revealed he used pot and cough syrup to help him “regain in New York the deep level of meditation he had in India,” said the judge.

“He poses a very real danger to the public exacerbated by his inability or unwillingness to maintain his own treatment,” Cohen concluded.

A flaw in the statutes?

Without a law on the books that addresses driving under the influence of over-the-counter drugs, the jury had a choice. They could convict for assault in the first degree based on intent or depraved indifference, or revert to the lesser assault in the second degree charge, based on simple recklessness.

New York law used to base assault on observable conduct, but a 2006 case called The People v. Feingold added “depraved indifference,” a mental state. The problem is that being intoxicated can be used as a defense; a defendant with drugs in his or her system could be found innocent of the assault.

Moran believes the jury produced an ironclad verdict that will stand up in appellate court. Assault II is based on simple, observable recklessness, which Spencer clearly exhibited on the day he swerved and weaved his way south before crashing into the Stefano’s car.

He points to another case, The People v. Valencia, which exposes this flaw and urges Albany to take action — and include severe intoxication as a provision in first degree assault and homicide statutes.

“I’m appalled the Legislature has not addressed this issue,” said Moran.

Kury speaks, and the sentence is handed down

Spencer had a chance to make a brief statement before Cohen handed down his sentence. “I extend my deepest sympathy and apology for the pain and suffering I have caused as a result of this tragic accident. It was never my intent to drive recklessly or endanger anyone on July 4, 2010. I ask Judge Cohen to show mercy and compassion not just for myself or for my father. I have many goals and skills. Please don’t throw me away like a piece of trash into state prison.”

But Cohen said he wasn’t inclined to base his sentence upon Spencer’s potential for good, but instead “upon how dangerous this person could be.”

“The defendant hasn’t gained any insight [in eight-and-a-half months in jail], and remains focused on his own future, desires and goals,” said Cohen. “His statement denied doing anything wrong.”

“In our county, there aren’t a lot of murders. People tend to die on our roads, from drugs and drunk driving. That’s how we lose people and how families are broken down.”

Besides the seven year term, Cohen also required three years probation, and restitution to the Stefano family of $112,000.

Seeds of the appeal

Spencer has 30 days to appeal, but McCaffrey had sent in the documents within an hour of the sentencing. The prelude to the appeal document could be seen in McCaffrey’s motions before the sentencing hearing for Judge Cohen to reverse the conviction based on Moran’s “prosecutorial misconduct.”

“Where’s the prosecutorial misconduct?” asked and repeated a dubious District Attorney as he fended off each of McCaffrey’s points.

First, McCaffrey pointed out that Moran foreshadowed in his opening statements to the jury possible “psychiatric evidence” that Spencer might be expected to introduce. McCaffrey never introduced Spencer’s mental illness into evidence because he didn’t feel Moran had proved the cough syrup abuse allegations.

“He said in front of the jury, “If I want to withdraw my notice [to introduce psychiatric evidence], that’s okay with him,’” McCaffrey told Judge Cohen.

By mentioning Spencer’s psychiatric affairs, McCaffrey claims Moran shifted the burden of proof onto the defendant, making the jury curious to hear evidence that Spencer was not obligated to produce as per his Fifth Amendment rights.

Secondly, McCaffrey pointed out the testimony of Dr. Terrence Bellnier, a pharnacy professor from SUNY Buffalo called to testify for the defense as to the unreliability of using dextromethorphan in the blood to determine intoxication. In his cross-examination, Moran asked Dr. Bellnier to offer an opinion about Spencer telling medical professionals following the crash that he had consumed “2-3 bottles of Delsym.”

That report contained “three levels of hearsay,” according to McCaffrey and was never introduced into evidence. Moran maintains he was within his right to ask the question because he had established that Dr. Bellnier had read the report . The doctor’s third-party conclusions, not the documents themselves, were what Moran hoped to present to the jury.

Moran’s own expert witness, Dr. Jean Beano, chief toxicologist for the Monroe County Medical Examiner’s Office, had agreed to base her testimony on the hypothetical rather than the specifics. However, under Moran’s questioning, Dr. Beano said she believed Spencer had “quite likely” consumed at least two bottles of Delsym to show the 210 nanograms per milliliter of dextromethorphan in his blood.

McCaffrey told the judge these incidents create unresolved errors in the trial, comparing the information revealed to a “bell which cannot be unrung.” Moran countered that the incidents were “speed bumps” which the judge “cured” each time by instructing the jury to disregard what they had heard. He also reminded the judge that the only way he could overturn a verdict was “if it is a matter of law.”

McCaffrey said that Dr. Beano’s conclusions were not based on strong consensus from the scientific community because there have been few studies of the effects of dextromethorphan on drivers. Moran replied that there are hundreds of studies on the effects of the drug, and that Dr. Beano is familiar with both the research and real-world cases in the course of her professional life.

Cohen denied McCaffrey’s motion.

McCaffrey told The County News in an interview that his appeal centers around the inadequate scientific evidence for blood test results to determine intoxication. He says it’s likely Spencer had two-to-three bottles of Delsym “two or three days before the crash,” but that the blood levels alone cannot show when he might have consumed them.

The appeal also questions Moran’s tactic of introducing Spencer’s estimate of how much of the drug he had taken during cross-examination of Dr. Bellnier.

If the appeal is successful, McCaffrey says the appellate court can do one of three things: reverse the charges and demand a new trial, reverse the charges and dismiss then or reverse the charges and devise a new sentence.

Next steps

McCaffrey told The County News he rushed the appeal to the mailbox because he wants to limit the time Spencer will serve in state prison. “We don’t know if he’s going to be in minimum, medium or maximum security prison. The Class D violent felony he was convicted of is the equivalent of someone taking a knife and slashing it around, hurting someone.”

Spencer’s father David Spencer told the County News after the sentencing that Kury’s nature is anything but violent. “He’s the kind of person who would shoo a mosquito off his arm rather than kill it. I don’t know any one person who has as much compassion and empathy as Kury Spencer.”

District Attorney Moran says Spencer is capable of violence because he has already committed it. “He hurt those people very badly. Their lives will never be the same.”

Moran believes the jury’s verdict “insulates” the case against appeal, and that Spencer will serve his seven years. “My hope is that his time in prison will give him a grasp of reality that this isn’t about Kury Spencer, that he bears some responsibility toward others and that he’s not better than they are.”

The two victims, however, will never live the full lives they once enjoyed.

“These were vibrant people,” Moran told the judge earlier during the hearing. “Their injuries haven’t abated. Their injuries are forever.”