| People v Tackentien |
| 2014 NY Slip Op 01053 [114 AD3d 1259] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Ronald Tackentien, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered June 22, 2011. The judgment convicted defendant, upon a nonjury verdict,of driving while intoxicated, a class E felony (two counts), criminally negligent homicideand failure to drive on right side of road.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict 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 negligenthomicide (Penal Law § 125.10). We reject defendant's contention that the evidenceis legally insufficient to support his conviction of criminally negligent homicide.Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the People "demonstrated thatdefendant engaged in conduct exhibiting 'the kind of seriously blameworthycarelessness,' " the seriousness of which " 'would be apparent to anyone who shares thecommunity's general sense of right and wrong' " (People v Asaro, 21 NY3d 677, 685 [2013], quoting People v Cabrera, 10 NY3d370, 377 [2008]; seePeople v Conway, 6 NY3d 869, 871-872 [2006]; People v Kraft, 278AD2d 591, 591-592 [2000], lv denied 96 NY2d 864 [2001]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crime of criminally negligent homicide in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Although we agree with defendant that Supreme Court erred in admitting in evidencephotographs of the victim's body taken at the accident scene and during the autopsy, weconclude that the error is harmless (see People v Holley, 48 AD3d 481, 481 [2008]; seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Contrary todefendant's further contention, the court properly sentenced him to five years ofprobation pursuant to Penal Law § 60.21 (see People v O'Brien, 111 AD3d 1028, 1029 [2013]; People v Panek, 104 AD3d1201, 1201-1202 [2013], lv denied 21 NY3d 1018 [2013]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Fahey, Peradotto, Lindley and Sconiers, JJ.