Opinion
2017–03807 Ind.No. 211/15
05-15-2019
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the law, by vacating the convictions of vehicular manslaughter in the first degree, vehicular manslaughter in the second degree, reckless driving, and operating a motor vehicle while under the influence of drugs, vacating the sentences imposed thereon, and dismissing those counts in the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the defendant was impaired by a drug when he struck and fatally injured the two victims with his car so as to support the convictions of aggravated vehicular homicide (see Penal Law § 125.14[3], [4] ; People v. Gallo , 133 A.D.3d 1088, 20 N.Y.S.3d 685 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo , 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that crime was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
As the People correctly concede, the defendant's convictions of vehicular manslaughter in the first degree ( Penal Law § 125.13[3], [4] ), vehicular manslaughter in the second degree ( Penal Law § 125.12[1] ), reckless driving ( Vehicle and Traffic Law § 1212 ), and operating a motor vehicle while under the influence of drugs ( Vehicle and Traffic Law § 1192[4] ) must be vacated and those counts of the indictment must be dismissed as inclusory concurrent counts of the convictions of aggravated vehicular homicide (see CPL 300.40[3][b] ; Penal Law § 125.14[3], [4] ; People v. Williams , 150 A.D.3d 1273, 55 N.Y.S.3d 381 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.