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

116
KA 09-02165
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

SEAN L. SANDERS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered July 23, 2009. The judgment convicted
defendant, upon a nonjury verdict, of criminally negligent homicide
and assault in the third 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, inter alia, criminally negligent homicide (Penal Law
§ 125.10) for punching the victim in the back of the head and thereby
causing his death, defendant contends that the verdict with respect to
that crime is against the weight of the evidence (see generally People
v Bleakley, 69 NY2d 490, 495). We reject that contention. “A person
is guilty of criminally negligent homicide when, with criminal
negligence, he causes the death of another person” (§ 125.10). “A
person acts with criminal negligence with respect to a result or to a
circumstance described by a statute defining an offense when he fails
to perceive a substantial and unjustifiable risk that such result will
occur or that such circumstance exists[;] [t]he risk must be of such
nature and degree that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable person would
observe in the situation” (§ 15.05 [4]). “ ‘[T]he carelessness
required for criminal negligence . . . must be such that its
seriousness would be apparent to anyone who shares the community’s
general sense of right and wrong’ ” (People v Conway, 6 NY3d 869,
872).

     Here, the evidence at trial established that defendant rushed at
the victim from behind and, without warning, delivered a powerful blow
with his closed fist to the victim’s head, which resulted in massive
bleeding around the victim’s brain and, ultimately, his death.
                                 -2-                           116
                                                         KA 09-02165

Eyewitnesses described defendant as using all of his body weight and
all of his momentum to deliver a blow that immediately dropped the
victim to the ground. The sound of the punch was described by
eyewitnesses as a very loud crack, like a wooden bat hitting a ball.
The Medical Examiner who performed the autopsy described the victim’s
injuries as similar to those she had seen in individuals who were
killed in high-speed automobile collisions. Although defendant is
correct that death resulting from a single punch may be unusual, we
have consistently held that one can commit criminally negligent
homicide with a single punch (see People v Bridenbaker, 266 AD2d 875,
875, lv denied 94 NY2d 917; People v Doty, 175 AD2d 564, 564, lv
denied 78 NY2d 1127). Viewing the evidence in light of the elements
of the crime of criminally negligent homicide in this nonjury trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that, although
an acquittal would not have been unreasonable, it cannot be said that
County Court failed to give the evidence the weight it should be
accorded (see generally Bleakley, 69 NY2d at 495; People v Howard, 101
AD3d 1749, lv denied 21 NY3d 944).




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
