| People v Flowers |
| 2016 NY Slip Op 03190 [138 AD3d 1138] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Maureen Flowers, Respondent. |
Eric T. Schneiderman, Attorney General, New York, NY (Barbara D. Underwood,Nikki Kowalski, Jodi A. Danzig, and Dennis Rambaud of counsel), for appellant.
James M. Timko, White Plains, NY, for respondent.
Appeal by the People from so much of an order of the County Court, WestchesterCounty (Zambelli, J.), entered November 22, 2013, as granted those branches of thedefendant's omnibus motion which were to dismiss counts one and three of theindictment on the ground that the evidence presented to the grand jury was legallyinsufficient.
Ordered that the order is affirmed insofar as appealed from.
As alleged in an indictment filed against the defendant, while employed as a certifiednurse aide at a residential health care facility, the defendant improperly utilized a liftingdevice in an attempt to transfer a resident from a bed to a chair. The resident fell to thefloor and sustained injuries that resulted in her death. Count one of the indictmentcharged the defendant with manslaughter in the second degree in violation of Penal Law§ 125.15 (1), and count three charged her with endangering the welfare of avulnerable elderly person, or an incompetent or physically disabled person in the firstdegree in violation of Penal Law § 260.34 (2).
In assessing the sufficiency of the evidence before the grand jury, a court mustevaluate " 'whether the evidence, viewed most favorably to the People, ifunexplained and uncontradicted—and deferring all questions as to the weight orquality of the evidence—would warrant conviction' " (People v Mills, 1 NY3d269, 274-275 [2003], quoting People v Carroll, 93 NY2d 564, 568 [1999];see People v Bello, 92 NY2d 523, 525 [1998]). " 'Legally sufficientevidence' means competent evidence which, if accepted as true, would establish everyelement of an offense charged and the defendant's commission thereof" (CPL 70.10[1]).
Both the first and third counts of the indictment required proof that the defendantacted recklessly in connection with the incident from which the charges arise (seePenal Law §§ 125.15 [1]; 260.34 [2]). A person acts recklessly"with respect to a result or to a circumstance described by a statute defining an offensewhen he [or she] is aware of and consciously disregards a substantial and unjustifiablerisk that such result will occur or that such circumstance exists," and the risk is "of suchnature and degree that disregard thereof constitutes a gross deviation from the standardof conduct that a reasonable person would observe in the situation" (Penal Law§ 15.05 [3]).
[*2] As theCounty Court correctly found, the grand jury evidence was not legally sufficient toestablish that the defendant acted recklessly (see People v Reagan, 94 NY2d 804,806 [1999]; see also People vRaymond, 56 AD3d 1306 [2008]; People v Gates, 140 AD2d 994, 995[1988]; cf. People vSanford, 24 AD3d 572, 573-574 [2005]; People v Simon, 157 AD2d508, 512-513 [1990]). Accordingly, the County Court properly dismissed counts one andthree of the indictment. Mastro, J.P., Dickerson, Hall and Sgroi, JJ., concur.