Opinion
2014-02-14
The PEOPLE of the State of New York, Respondent, v. Ronald TACKENTIEN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of, inter alia, two counts of driving while intoxicated (Vehicle and Traffic Law §§ 1192[2], [3]; 1193[1][c][i] ) and one count of criminally negligent homicide (Penal Law § 125.10). We reject defendant's contention that the evidence is legally insufficient to support his conviction of criminally negligent homicide. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the People “demonstrated that defendant engaged in conduct exhibiting ‘the kind of seriously blameworthy carelessness,’ ” the seriousness of which “ ‘would be apparent to anyone who shares the community's general sense of right and wrong’ ” ( People v. Asaro, 21 N.Y.3d 677, 685, 976 N.Y.S.2d 10, 998 N.E.2d 810, quoting People v. Cabrera, 10 N.Y.3d 370, 377, 858 N.Y.S.2d 74, 887 N.E.2d 1132;see People v. Conway, 6 N.Y.3d 869, 871–872, 816 N.Y.S.2d 731, 849 N.E.2d 954;People v. Kraft, 278 A.D.2d 591, 591–592, 717 N.Y.S.2d 718,lv. denied96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crime of criminally negligent homicide in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Although we agree with defendant that Supreme Court erred in admitting in evidence photographs of the victim's body taken at the accident scene and during the autopsy, we conclude that the error is harmless ( see People v. Holley, 48 A.D.3d 481, 481, 851 N.Y.S.2d 625;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Contrary to defendant's further contention, the court properly sentenced him to five years of probation pursuant to Penal Law § 60.21 ( see People v. O'Brien, 111 A.D.3d 1028, 1029, 975 N.Y.S.2d 219;People v. Panek, 104 A.D.3d 1201, 1201–1202, 960 N.Y.S.2d 801,lv. denied21 N.Y.3d 1018, 971 N.Y.S.2d 500, 994 N.E.2d 396).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.