                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 22, 2015                    106034
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

DEANA M. OLSEN,
                    Appellant.
________________________________


Calendar Date:    November 12, 2014

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


     Catherine A. Barber, Albany, for appellant.

      J. Anthony Jordan, District Attorney, Fort Edward (Sara E.
Fischer of counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered March 28, 2013, convicting
defendant following a nonjury trial of the crimes of criminally
negligent homicide and reckless driving, and the traffic
infractions of use of a portable electronic device while
operating a motor vehicle and failure to keep right.

      Defendant was driving northbound on a two-lane county road
on her way to ride horses with a friend when she lost control of
her sport utility vehicle, causing it to travel off the road onto
the front lawn of the victim's property and to fatally strike the
victim before crashing into a stone wall. Consequently,
defendant was charged in an eight-count indictment with various
crimes and traffic infractions. A bench trial was conducted,
                              -2-                106034

after which defendant was found guilty of criminally negligent
homicide, reckless driving, use of a portable electronic device
while operating a motor vehicle and failure to keep right.
County Court sentenced defendant to 1a to 4 years in prison for
her criminally negligent homicide conviction and assessed fines
and surcharges in relation to the other convictions. Defendant
now appeals.

      Defendant asserts that the criminally negligent homicide,
reckless driving and use of a portable electronic device while
operating a motor vehicle convictions are against the weight of
the evidence.1 "Where . . . a different verdict would not have
been unreasonable, this Court must view the evidence in a neutral
light and, 'like the trier of fact below, weigh the relative
probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from the
testimony'" (People v Sheppard, 107 AD3d 1237, 1238 [2013], lv
denied 22 NY3d 1203 [2014], quoting People v Romero, 7 NY3d 633,
643 [2006]). At trial, the People presented testimony from
witnesses who observed defendant swerving in and out of her lane
of travel and passing several vehicles in the moments leading up
to the accident. In particular, one witness testified that, as
defendant was passing vehicles, a vehicle in the southbound lane
was forced off of the road in order to avoid a head-on collision.
Despite that near miss, the witness recalled that defendant then
passed her vehicle and three others and then suddenly lost
control of her vehicle and drove off the road. Another witness
indicated that he had to move closer to a manure truck that was
in front of him, and the car that had been traveling directly
behind his vehicle was forced to slow down so that defendant
could fit her vehicle into a small gap in the northbound lane.


    1
        Defendant did not preserve her argument that these
convictions were not supported by legally sufficient evidence by
failing to move to dismiss said charges following the close of
all the evidence at trial (see People v Ramirez, 118 AD3d 1108,
1110 [2014]). Nonetheless, in deciding whether the convictions
were contrary to the weight of the trial evidence, we necessarily
review the sufficiency of such evidence (see People v Ballenger,
106 AD3d 1375, 1376 n [2013], lv denied 22 NY3d 995 [2013]).
                              -3-                106034

Overall, this evidence indicates that defendant's haphazard
weaving among vehicles on a moderately busy two-lane road
"unreasonably interefere[d] with the free and proper use of the
public highway" and unreasonably endangered the safety of those
that were on the road at that time, thereby supporting
defendant's reckless driving conviction (Vehicle and Traffic Law
§ 1212; see People v Earley, 121 AD3d 1192, 1193-1194 [2014];
People v Goldblatt, 98 AD3d 817, 818-820 [2012], lv denied 20
NY3d 932 [2012]).

      County Court also heard from witnesses that observed
defendant looking down as she was driving just prior to the
accident. Moreover, one witness saw defendant holding an
unidentified item in her hands at the top of the steering wheel
and that her hands and thumbs appeared to be moving. Defendant's
friend acknowledged at trial that she sent defendant text
messages on the morning of the accident, in which she chided
defendant for running late for their horse ride. Trial testimony
revealed that, although the text messages appeared to have been
received and opened, defendant did not respond to them. When one
witness stopped to check on defendant immediately following the
accident, defendant asked the witness to retrieve her cell phone,
which was located on the floor of the front passenger seat. As
this evidence allowed the court to reasonably infer that
defendant was holding and using her cell phone while driving, we
do not agree with defendant's claim that the conviction on the
use of a portable electronic device while operating a motor
vehicle was against the weight of the trial evidence (see Vehicle
and Traffic Law § 1225-d).

      Furthermore, we reject defendant's claim that her conduct
was not sufficiently blameworthy to support the criminally
negligent homicide conviction and conclude that her actions
evinced "the kind of 'seriously blameworthy' carelessness whose
'seriousness would be apparent to anyone who shares the
community's general sense of right and wrong'" (People v Cabrera,
10 NY3d 370, 377 [2008] [brackets omitted], quoting People v
Boutin, 75 NY2d 692, 696 [1990]; accord People v Asaro, 21 NY3d
677, 685 [2013]). Viewing the evidence in a neutral light,
namely that defendant engaged in unsafe passing and drove in an
erratic manner while looking at her cell phone, which ultimately
                              -4-                  106034

caused her to lose control of her vehicle and fatally strike an
innocent bystander, and deferring to County Court's "'opportunity
to view the witnesses, hear the testimony and observe demeanor,'"
we conclude that defendant's convictions were not contrary to the
weight of the evidence (People v Tompkins, 107 AD3d 1037, 1038
[2013], lv denied 22 NY3d 1044 [2013], quoting People v Bleakley,
69 NY2d 490, 495 [1987]; see People v Guglielmo, 30 AD3d 830, 832
[2006], lv denied 7 NY3d 813 [2006]).

      Finally, we address defendant's claim that the sentence
imposed by County Court was harsh and excessive. Specifically,
defendant insists that because she has no prior criminal record
and serves as the primary caregiver for her two children, the
sentence should be reduced. Appalled by defendant's apparent
lack of remorse and statements that she made at sentencing, in
which she compared her situation to that of the victim of her own
crime, County Court imposed the maximum prison sentence allowed
for the criminally negligent homicide conviction. Under these
circumstances and in the absence of any abuse of discretion by
the sentencing court, we are not convinced that a reduction of
the sentence is warranted (see People v Newkirk, 75 AD3d 853,
857-858 [2010], lv denied 16 NY3d 834 [2011]; People v Warner, 9
AD3d 604, 604-605 [2004]).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
