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

738
KA 08-02208
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JAMIE R. TACKLEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Teresa D.
Johnson, A.J.), rendered August 15, 2008. The judgment convicted
defendant, upon a nonjury verdict, of criminal mischief in the second
degree, driving while intoxicated, a misdemeanor (two counts),
resisting arrest and reckless endangerment in the second 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, criminal mischief in the second degree
(Penal Law § 145.10), defendant contends that the verdict with respect
to that crime is against the weight of the evidence. We reject that
contention. Based on our independent review of the evidence, we
conclude that a different verdict would have been unreasonable (see
People v Peters, 90 AD3d 1507, 1508, lv denied 18 NY3d 996; see
generally People v Bleakley, 69 NY2d 490, 495). Even assuming,
arguendo, that a different verdict would not have been unreasonable,
we further conclude that “[County Court] was in the best position to
assess the credibility of the witnesses and, on this record, it cannot
be said that the [court] failed to give the evidence the weight it
should be accorded” (People v Orta, 12 AD3d 1147, 1147, lv denied 4
NY3d 801; see People v Clarke, 101 AD3d 1646, 1647, lv denied 20 NY3d
1097).




Entered:   June 14, 2013                           Frances E. Cafarell
                                                   Clerk of the Court
