| People v Roth |
| 2016 NY Slip Op 05257 [141 AD3d 1090] |
| July 1, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Appellant, vBrenda E. Roth, Respondent. |
Leanne K. Moser, District Attorney, Lowville (Wendy Lehmann, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for appellant.
Donald R. Gerace, Utica, for defendant-respondent.
Appeal from an order of the Lewis County Court (Daniel R. King, J.), dated June 18,2015. The order, insofar as appealed from, granted that part of defendant's omnibusmotion seeking to dismiss the first three counts of the indictment.
It is hereby ordered that the order insofar as appealed from is unanimously reversedon the law, that part of defendant's omnibus motion seeking to dismiss the first threecounts of the indictment is denied, those counts are reinstated, and the matter is remittedto Lewis County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order insofar as it granted that part ofdefendant's omnibus motion seeking to dismiss the first three counts of the indictment onthe ground that they were not supported by legally sufficient evidence. Defendant wascharged in those counts with manslaughter in the second degree (Penal Law§ 125.15 [1]), criminally negligent homicide (§ 125.10), andtampering with physical evidence (§ 215.40 [2]), arising from the death ofthe 15-year-old victim from a drug overdose in defendant's home. We reverse.
"The standard for reviewing the legal sufficiency of the evidence before the grandjury is whether the evidence, viewed in the light most favorable to the People, ifunexplained and uncontradicted, would be sufficient to warrant conviction by a trialjury" (People v Bianco, 67AD3d 1417, 1418-1419 [2009], lv denied 14 NY3d 797 [2010] [internalquotation marks omitted]). "On a motion to dismiss, the reviewing court's inquiry isconfined to the legal sufficiency of the evidence and the court is not to weigh the proofor examine its adequacy" (People v Galatro, 84 NY2d 160, 164 [1994])." 'In the context of the [g]rand [j]ury procedure, legally sufficient means primafacie, not proof beyond a reasonable doubt' " (People v Deegan, 69 NY2d976, 978-979 [1987]). Further, the fact "[t]hat other, innocent inferences could possiblybe drawn from the facts is irrelevant on this pleading stage inquiry, as long as the [g]rand[j]ury could rationally have drawn the guilty inference" (id. at 979; see People v Raymond, 56AD3d 1306, 1307 [2008], lv denied 12 NY3d 820 [2009]).
Here, we conclude that the evidence, viewed in the light most favorable to the People(see Bianco, 67 AD3d at 1418-1419), is legally sufficient to support the countsthat were dismissed by County Court, and that the court improperly weighed the evidence(see generally Galatro, 84 NY2d at 163-165). With respect to the first two counts,charging manslaughter in the second degree and criminally negligent homicide, weconclude that the evidence of aggravating circumstances, including the quantity of drugsprovided by defendant (cf. People v Pinckney, 38 AD2d 217, 220-221 [1972],affd 32 NY2d 749 [1973]), defendant's alleged refusal to permit the otherchildren present to call for medical assistance for the victim, and her direction to thosechildren not to answer the cell phone calls from the victim's mother because the victimwas not supposed to be [*2]at her house, is legallysufficient to establish a prima facie case that defendant's actions created a substantial andunjustifiable risk of death (see People v Cruciani, 44 AD2d 684, 684-685 [1974],affd 36 NY2d 304 [1975]; cf. People v Erb, 70 AD3d 1380, 1381 [2010], lvdenied 14 NY3d 840 [2010]; Bianco, 67 AD3d at 1418-1419). With respectto the third count, charging tampering with physical evidence, we likewise conclude thatthe court failed to view the evidence in the light most favorable to the People andimproperly weighed the evidence in concluding that the evidence was legally insufficientto support that count (see generally People v Hafeez, 100 NY2d 253, 259-260[2003]). Present—Centra, J.P., Peradotto, Lindley, DeJoseph and Curran, JJ.