| People v Olsen |
| 2015 NY Slip Op 00574 [124 AD3d 1084] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDeana M. Olsen, Appellant. |
Catherine A. Barber, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Sara E. Fischer of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered March 28, 2013, convicting defendant following a nonjurytrial of the crimes of criminally negligent homicide and reckless driving, and the trafficinfractions of use of a portable electronic device while operating a motor vehicle andfailure to keep right.
Defendant was driving northbound on a two-lane county road on her way to ridehorses with a friend when she lost control of her sport utility vehicle, causing it to traveloff the road onto the front lawn of the victim's property and to fatally strike the victimbefore crashing into a stone wall. Consequently, defendant was charged in an eight-countindictment with various crimes and traffic infractions. A bench trial was conducted, afterwhich defendant was found guilty of criminally negligent homicide, reckless driving, useof a portable electronic device while operating a motor vehicle and failure to keep right.County Court sentenced defendant to 1
Defendant asserts that the criminally negligent homicide, reckless driving and use ofa portable electronic device while operating a motor vehicle convictions are against theweight of [*2]the evidence.[FN*] "Where . . . a differentverdict would not have been unreasonable, this Court must view the evidence in a neutrallight and, 'like the trier of fact below, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony' " (People vSheppard, 107 AD3d 1237, 1238 [2013], lv denied 22 NY3d 1203[2014], quoting People vRomero, 7 NY3d 633, 643 [2006]). At trial, the People presented testimonyfrom witnesses who observed defendant swerving in and out of her lane of travel andpassing several vehicles in the moments leading up to the accident. In particular, onewitness testified that, as defendant was passing vehicles, a vehicle in the southbound lanewas forced off of the road in order to avoid a head-on collision. Despite that near miss,the witness recalled that defendant then passed her vehicle and three others and thensuddenly lost control of her vehicle and drove off the road. Another witness indicatedthat he had to move closer to a manure truck that was in front of him, and the car that hadbeen traveling directly behind his vehicle was forced to slow down so that defendantcould fit her vehicle into a small gap in the northbound lane. Overall, this evidenceindicates that defendant's haphazard weaving among vehicles on a moderately busytwo-lane road "unreasonably interefere[d] with the free and proper use of the publichighway" and unreasonably endangered the safety of those that were on the road at thattime, thereby supporting defendant's reckless driving conviction (Vehicle and TrafficLaw § 1212; seePeople v Earley, 121 AD3d 1192, 1193-1194 [2014]; People v Goldblatt, 98 AD3d817, 818-820 [2012], lv denied 20 NY3d 932 [2012]).
County Court also heard from witnesses that observed defendant looking down asshe was driving just prior to the accident. Moreover, one witness saw defendant holdingan unidentified item in her hands at the top of the steering wheel and that her hands andthumbs appeared to be moving. Defendant's friend acknowledged at trial that she sentdefendant text messages on the morning of the accident, in which she chided defendantfor running late for their horse ride. Trial testimony revealed that, although the textmessages appeared to have been received and opened, defendant did not respond tothem. When one witness stopped to check on defendant immediately following theaccident, defendant asked the witness to retrieve her cell phone, which was located onthe floor of the front passenger seat. As this evidence allowed the court to reasonablyinfer that defendant was holding and using her cell phone while driving, we do not agreewith defendant's claim that the conviction on the use of a portable electronic device whileoperating a motor vehicle was against the weight of the trial evidence (seeVehicle and Traffic Law § 1225-d).
Furthermore, we reject defendant's claim that her conduct was not sufficientlyblameworthy to support the criminally negligent homicide conviction and conclude thather actions evinced "the kind of 'seriously blameworthy' carelessness whose 'seriousnesswould be apparent to anyone who shares the community's general sense of right andwrong' " (People vCabrera, 10 NY3d 370, 377 [2008] [brackets omitted], quoting People vBoutin, 75 NY2d 692, 696 [1990]; accord People v Asaro, 21 NY3d 677, 685 [2013]).Viewing the evidence in a neutral light, namely that defendant engaged in unsafe passingand drove in an erratic manner [*3]while looking at hercell phone, which ultimately caused her to lose control of her vehicle and fatally strike aninnocent bystander, and deferring to County Court's " 'opportunity to view thewitnesses, hear the testimony and observe demeanor,' " we conclude thatdefendant's convictions were not contrary to the weight of the evidence (People v Tompkins, 107 AD3d1037, 1038 [2013], lv denied 22 NY3d 1044 [2013], quoting People vBleakley, 69 NY2d 490, 495 [1987]; see People v Guglielmo, 30 AD3d 830, 832 [2006], lvdenied 7 NY3d 813 [2006]).
Finally, we address defendant's claim that the sentence imposed by County Court washarsh and excessive. Specifically, defendant insists that because she has no prior criminalrecord and serves as the primary caregiver for her two children, the sentence should bereduced. Appalled by defendant's apparent lack of remorse and statements that she madeat sentencing, in which she compared her situation to that of the victim of her own crime,County Court imposed the maximum prison sentence allowed for the criminallynegligent homicide conviction. Under these circumstances and in the absence of anyabuse of discretion by the sentencing court, we are not convinced that a reduction of thesentence is warranted (seePeople v Newkirk, 75 AD3d 853, 857-858 [2010], lv denied 16 NY3d834 [2011]; People vWarner, 9 AD3d 604, 604-605 [2004]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant did notpreserve her argument that these convictions were not supported by legally sufficientevidence by failing to move to dismiss said charges following the close of all theevidence at trial (see People vRamirez, 118 AD3d 1108, 1110 [2014]). Nonetheless, in deciding whether theconvictions were contrary to the weight of the trial evidence, we necessarily review thesufficiency of such evidence (see People v Ballenger, 106 AD3d 1375, 1376 n [2013],lv denied 22 NY3d 995 [2013]).