People v Garner

People v Garner 2016 NY Slip Op 07675 Decided on November 16, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 16, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2014-06641
(Ind. No. 13-00482)

[*1]The People of the State of New York, respondent,

v

Kenyatta Garner, appellant.

Andrew W. Sayegh, White Plains, NY, for appellant.

James A. McCarty, Acting District Attorney, White Plains, NY (Steven A. Bender and Laurie G. Sapakoff of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered June 2, 2014, convicting him of criminally negligent homicide (two counts), assault in the third degree (two counts), and speeding, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence presented at trial established that the defendant was operating a vehicle at an estimated speed of 98 to 104 miles per hour in the right hand lane of the Saw Mill River Parkway, where the posted speed limit was 50 miles per hour. The defendant ignored the request of a passenger to slow down, as well as posted signs warning of a sharp curve in the road, and his vehicle clipped the rear passenger side of a vehicle which was traveling ahead of him at the posted speed limit, causing him to lose control of the vehicle he was operating. The defendant's vehicle struck a concrete barrier and then became airborne, ultimately landing on its roof. Two of the passengers in the defendant's vehicle were ejected during the accident and died. The other two passengers and the defendant were injured.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the defendant's convictions of criminally negligent homicide and assault in the third degree, for failing to perceive a substantial and unjustifiable risk that death and physical injury would occur as a result of his operation of the vehicle he was driving, which failure was a gross deviation from the standard of care that a reasonable person would observe in the situation (see Penal Law §§ 125.10, 120.00[3]; 15.05[4]; People v Paul V.S., 75 NY2d 944).

CHAMBERS, J.P., AUSTIN, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court