| People v McKinney |
| 2012 NY Slip Op 00568 [91 AD3d 1300] |
| Jnury 31, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Vanessa Mckinney, Appellant. |
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered November 26, 2007. The judgment convicted defendant, upon a jury verdict, of leavingthe scene of a personal injury incident and failure to obey a traffic control device. It is hereby ordered that the judgment so appealed from is unanimously modified on thelaw by reducing the conviction of leaving the scene of a personal injury incident withoutreporting as a class D felony under Vehicle and Traffic Law 600 (2) to leaving the scene of apersonal injury incident without reporting as a class E felony and by vacating the sentenceimposed on count one of the indictment and imposing a sentence of 1 to 4 years on that countand as modified the judgment is affirmed in accordance with the following memorandum:Defendant appeals from a judgment convicting her following a jury trial of, inter alia, leaving thescene of a personal injury incident as a class D felony (Vehicle and Traffic Law 600 [2] [a]). Asdefendant contends, and the People correctly conceded at oral argument of this appeal, theindictment as filed charged defendant with only a class E felony under section 600 (2) (a), forhaving caused "serious physical injury" to the victim, and thus Supreme Court erred in grantingthe People's oral motion at trial to amend the indictment to allege that the victim died, therebyraising the offense to a class D felony (see 600 [2] [c]). Because the People proved at trialbeyond a reasonable doubt that defendant left the scene of a personal injury incident that resultedin serious physical injury to another person, we modify the judgment by reducing the convictionfrom a class D felony to a class E felony. Inasmuch as defendant has already served themaximum term of imprisonment permitted for the class E felony, there is no need to remit thematter to Supreme Court for resentencing on count one (see People v Jackson, 269 AD2d 867[2000], lv denied 95 NY2d 798 [2000]). Rather, in the interest of judicial economy, we insteadfurther modify the judgment by vacating the sentence imposed on count one and by imposing themaximum allowed for a class E felony, i.e., an indeterminate term of imprisonment of 1 to 4years. Present Smith, J.P., Peradotto, Lindley, Sconiers and Gorski, JJ.