        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

70
KA 14-01891
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID E. BARNES, DEFENDANT-APPELLANT.


GANGULY BROTHERS, PLLC, ROCHESTER (ANJAN K. GANGULY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered October 14, 2014. The judgment
convicted defendant, upon a nonjury verdict, of driving while
intoxicated, a class E felony, and aggravated unlicensed operation of
a motor vehicle in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of driving while intoxicated as a class E felony
(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]) and aggravated
unlicensed operation of a motor vehicle in the first degree (§ 511 [3]
[a] [ii]), defendant contends that the evidence is legally
insufficient to establish that he was operating the vehicle at the
time of the accident. We reject that contention. “ ‘It is well
settled that, even in circumstantial evidence cases, the standard for
appellate review of legal sufficiency issues is whether any valid line
of reasoning and permissible inferences could lead a rational person
to the conclusion reached by the [factfinder] on the basis of the
evidence at trial, viewed in the light most favorable to the People’ ”
(People v Annis, 126 AD3d 1525, 1525-1526; see People v Bleakley, 69
NY2d 490, 495). Here, we conclude that “ ‘there is ample evidence in
the record from which [Supreme Court] could have reasonably concluded
that defendant was indeed driving at the time of the accident’ ”
(Annis, 126 AD3d at 1526). When a police officer arrived on the
scene, he observed that a vehicle had struck a support pillar for an
interstate highway. The officer concluded that the accident had
happened shortly before his arrival because, among other things, the
vehicle’s engine was still warm. There were footprints in the snow
leading away from the driver’s side only, the only airbag that had
deployed was on the driver’s side, and the backseat contained two
                                 -2-                            70
                                                         KA 14-01891

children’s car seats that appeared to leave no room for an adult to
sit. Defendant was subsequently located at a gas station and,
although he denied to the police that he had been the driver, the gas
station was in close proximity to the accident scene, defendant
exhibited signs of alcohol consumption and intoxication, and defendant
admitted that he had been in the vehicle (see id.). Contrary to
defendant’s further contention, we conclude that, to the extent that
the People’s proof included inadmissible hearsay, any error in
admitting such proof in evidence is harmless. “In this nonjury case,
the court is presumed to have considered only competent evidence in
reaching the verdict . . . , and there is no basis in this record to
conclude that the court did otherwise” (People v Clinkscales, 277 AD2d
930, 931, lv denied 96 NY2d 733). Finally, we conclude that, viewing
the evidence in light of the elements of the crimes in this nonjury
trial (see People v Danielson, 9 NY3d 342, 349), the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).




Entered:   March 18, 2016                      Frances E. Cafarell
                                               Clerk of the Court
