| People v Mooney |
| 2009 NY Slip Op 03752 [62 AD3d 725] |
| May 5, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Mooney, Also Known as Daniel Garcia,Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Luke E. Bovill and Andrew R. Kassof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Rosenwasser, J.), rendered March 20, 2006, convicting him of assault in the first degree, assaultin the second degree, reckless endangerment in the first degree, vehicular assault in the seconddegree (two counts), aggravated unlicensed operation of a motor vehicle, criminal mischief inthe fourth degree, and operating a motor vehicle while under the influence of alcohol (twocounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On July 20, 2005 the defendant engaged police officers from the Town of Chester and theVillage of Chester in a high-speed chase. At the time, the defendant was intoxicated, without avalid driver's license, and on parole in both New York and New Jersey. The terms of thedefendant's parole in New Jersey required that he receive permission before leaving the state,which he did not have. At times during the chase, the defendant drove at speed of approximately70 to 75 miles per hour, in excess of the posted speed limit, drove through a residential area,crossed over a grassy median and made a U-turn into oncoming traffic, almost collided withapproximately three other vehicles, including one of the police cars pursuing him, ran throughstop signs, and turned his headlights off before he sped around a curve and collided head-on witha Town of Chester police car, causing injury to the police officer driving the vehicle and to thepassenger in his vehicle.[*2]
The defendant's challenge to the legal sufficiency of theevidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484[2008]; People v Santos, 86 NY2d 869 [1995]; People v Jean-Baptiste, 57 AD3d 566 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish that the defendantacted with the culpable mental state of depraved indifference to human life and, thus, supportedhis convictions of assault in the first degree and reckless endangerment in the first degree(see Penal Law § 120.10 [3]; § 120.25; People v Feingold, 7 NY3d 288 [2006]; People v Gonzalez,288 AD2d 321 [2001]; People v Walker, 258 AD2d 541 [1999]). In fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
Furthermore, the defendant's claim that the jury charge relating to the two counts ofvehicular assault in the second degree did not match the language of the indictment isunpreserved for appellate review (see CPL 470.05 [2]). In any event, the charge given tothe jury was proper, and "the jury is presumed to follow the court's instructions" (People vLugo, 218 AD2d 711, 711 [1995]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Spolzino, J.P., Fisher, Miller and Balkin, JJ., concur.