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

584
KA 15-01259
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                                MEMORANDUM AND ORDER

BRENDA E. ROTH, DEFENDANT-RESPONDENT.


LEANNE K. MOSER, DISTRICT ATTORNEY, LOWVILLE (WENDY LEHMANN, NEW YORK
PROSECUTORS TRAINING INSTITUTE, INC., ALBANY, OF COUNSEL), FOR
APPELLANT.

DONALD R. GERACE, UTICA, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Lewis County Court (Daniel R. King,
J.), dated June 18, 2015. The order, insofar as appealed from,
granted that part of defendant’s omnibus motion seeking to dismiss the
first three counts of the indictment.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law, that part of defendant’s omnibus
motion seeking to dismiss the first three counts of the indictment is
denied, those counts are reinstated, and the matter is remitted to
Lewis County Court for further proceedings on the indictment.

     Memorandum: The People appeal from an order insofar as it
granted that part of defendant’s omnibus motion seeking to dismiss the
first three counts of the indictment on the ground that they were not
supported by legally sufficient evidence. Defendant was charged in
those counts with manslaughter in the second degree (Penal Law
§ 125.15 [1]), criminally negligent homicide (§ 125.10), and tampering
with physical evidence (§ 215.40 [2]), arising from the death of the
15-year-old victim from a drug overdose in defendant’s home. We
reverse.

     “The standard for reviewing the legal sufficiency of the evidence
before the grand jury is whether the evidence, viewed in the light
most favorable to the People, if unexplained and uncontradicted, would
be sufficient to warrant conviction by a trial jury” (People v Bianco,
67 AD3d 1417, 1418-1419, lv denied 14 NY3d 797 [internal quotation
marks omitted]). “On a motion to dismiss, the reviewing court’s
inquiry is confined to the legal sufficiency of the evidence and the
court is not to weigh the proof or examine its adequacy” (People v
Galatro, 84 NY2d 160, 164). “ ‘In the context of the [g]rand [j]ury
procedure, legally sufficient means prima facie, not proof beyond a
reasonable doubt’ ” (People v Deegan, 69 NY2d 976, 978-979). Further,
                                 -2-                           584
                                                         KA 15-01259

the fact “[t]hat other, innocent inferences could possibly be drawn
from the facts is irrelevant on this pleading stage inquiry, as long
as the [g]rand [j]ury could rationally have drawn the guilty
inference” (id. at 979; see People v Raymond, 56 AD3d 1306, 1307, lv
denied 12 NY3d 820).

     Here, we conclude that the evidence, viewed in the light most
favorable to the People (see Bianco, 67 AD3d at 1418-1419), is legally
sufficient to support the counts that were dismissed by County Court,
and that the court improperly weighed the evidence (see generally
Galatro, 84 NY2d at 163-165). With respect to the first two counts,
charging manslaughter in the second degree and criminally negligent
homicide, we conclude that the evidence of aggravating circumstances,
including the quantity of drugs provided by defendant (cf. People v
Pinckney, 38 AD2d 217, 220-221, affd 32 NY2d 749), defendant’s alleged
refusal to permit the other children present to call for medical
assistance for the victim, and her direction to those children not to
answer the cell phone calls from the victim’s mother because the
victim was not supposed to be at her house, is legally sufficient to
establish a prima facie case that defendant’s actions created a
substantial and unjustifiable risk of death (see People v Cruciani, 44
AD2d 684, 684-685, affd 36 NY2d 304; cf. People v Erb, 70 AD3d 1380,
1381, lv denied 14 NY3d 840; Bianco, 67 AD3d at 1418-1419). With
respect to the third count, charging tampering with physical evidence,
we likewise conclude that the court failed to view the evidence in the
light most favorable to the People and improperly weighed the evidence
in concluding that the evidence was legally insufficient to support
that count (see generally People v Hafeez, 100 NY2d 253, 259-260).




Entered:   July 1, 2016                        Frances E. Cafarell
                                               Clerk of the Court
