Opinion
615 KA 18–02411
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Jodie L. ROMEISER, Defendant-Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law, the indictment is dismissed and the matter is remitted to Ontario County Court for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting her upon a jury verdict of two counts of assault in the third degree ( Penal Law § 120.00 [2] ), defendant contends that the conviction is not supported by legally sufficient evidence with respect to the element of recklessness. Defendant failed to preserve that contention for our review, however, "because [her] motion for a trial order of dismissal ‘was not specifically directed at the ground[ ] advanced on appeal’ " ( People v. Johnson , 78 A.D.3d 1548, 1548, 910 N.Y.S.2d 723 [4th Dept. 2010], lv denied 16 N.Y.3d 743, 917 N.Y.S.2d 625, 942 N.E.2d 1050 [2010] ; see People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). We nevertheless exercise our power to review her challenge as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
We agree with defendant that the conviction of both counts of assault in the third degree is not supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The evidence submitted by the People is insufficient to establish that defendant acted recklessly, "i.e., that [s]he perceived a substantial and unjustifiable risk of [injury] and that [her] conscious disregard of that risk constituted a gross deviation from the standard of conduct that a reasonable person would observe in that situation" ( People v. Roth , 256 A.D.2d 1206, 1207, 683 N.Y.S.2d 358 [4th Dept. 1998] ; see Penal Law § 15.05 [3] ; cf. People v. Crosby , 151 A.D.3d 1184, 1187–1188, 56 N.Y.S.3d 376 [3d Dept. 2017] ; People v. Miller , 286 A.D.2d 981, 981, 730 N.Y.S.2d 617 [4th Dept. 2001], lv denied 97 N.Y.2d 657, 737 N.Y.S.2d 58, 762 N.E.2d 936 [2001] ).
Defendant's remaining contentions are academic in light of our determination.