People v Mackey (Sheila)

[*1] People v Mackey (Sheila) 2010 NY Slip Op 51462(U) [28 Misc 3d 137(A)] Decided on August 13, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and IANNACCI, JJ
2008-1422 N CR.

The People of the State of New York, Respondent,

against

Sheila Mackey, Appellant.

Appeal from judgments of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), rendered July 16, 2008. The judgments convicted defendant, upon jury verdicts, of endangering the welfare of a child, unlawfully fleeing a police officer in a motor vehicle in the third degree, aggravated unlicensed operation of a motor vehicle in the third degree, reckless driving, speeding, unsafe passing on the left and unlicensed operation of a motor vehicle.

ORDERED that the appeal from the judgment convicting defendant of unlicensed operation of a motor vehicle is dismissed as abandoned; and it is further,

ORDERED that the judgments convicting defendant of endangering the welfare of a child, unlawfully fleeing a police officer in a motor vehicle in the third degree, aggravated unlicensed operation of a motor vehicle in the third degree, reckless driving, speeding and unsafe passing on the left are affirmed.

Defendant was convicted, after a jury trial, of endangering the welfare of a child (Penal Law § 260.10), unlawfully fleeing a police officer in a motor vehicle in the third degree (Penal Law § 270.25), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1]), reckless driving (Vehicle and Traffic Law § 1212), speeding (Vehicle and Traffic Law § 1180 [a]), unsafe passing on the left (Vehicle and Traffic Law § 1124) and unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]).

Defendant failed to preserve for appellate review her contention that the evidence of unlawfully fleeing a police officer in a motor vehicle in the third degree was not legally sufficient (see CPL 470.05 [2]). While defendant made an application for a trial order of dismissal of the endangering the welfare of a child charge at the close of the People's case, defendant failed to renew the motion after presenting evidence, and, therefore, waived subsequent review of that determination as well (see People v Montana, 298 AD2d 934 [2002]). In any event, we are of the opinion that the evidence, when viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt of both of these charges beyond a reasonable doubt. Regarding the charge of endangering the welfare of a child, we find that defendant acted knowingly so as to cause a true likelihood of injury to the child (see People v Figueroa, 20 Misc 3d 130[A], 2008 NY Slip Op 51427[U] [App Term, 9th & [*2]10th Jud Dists 2008] [affirming conviction for endangering the welfare of a child along with convictions for reckless endangerment in the second degree and reckless driving, both misdemeanors]; cf. People v Chase, 186 Misc 2d 487 [App Term, 9th & 10th Jud Dists 2000] [reversing conviction for endangering the welfare of a child where the defendant was also convicted of three traffic infractions but no other misdemeanor]).

Defendant failed to object to the court's jury charge, thereby waiving her objection to the charge as given and, accordingly, her claim of error with respect thereto is not preserved for appellate review (see People v Andujar, 180 AD2d 743 [1992]).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the fact-finder's opportunity at the trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Mateo, 2 NY3d 383 [2004]). Upon our review of the evidence in light of the elements of the offenses as charged to the jury, we are satisfied, as to all the offenses that are being reviewed, that the verdicts of guilt are not against the weight of the evidence.

Accordingly, the judgments convicting defendant of endangering the welfare of a child, unlawfully fleeing a police officer in a motor vehicle in the third degree, aggravated unlicensed operation of a motor vehicle in the third degree, reckless driving, speeding and unsafe passing on the left are affirmed.

Nicolai, P.J., Tanenbaum and Iannacci, JJ., concur.
Decision Date: August 13, 2010