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

526
KA 09-02147
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

SANDRA M. ARENA, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P. Geraci,
Jr., J.), rendered April 22, 2009. The judgment convicted defendant,
upon a nonjury verdict, of manslaughter in the second degree and assault
in the third degree (four counts).

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

     Memorandum: On appeal from a judgment convicting her following a
nonjury trial of manslaughter in the second degree (Penal Law § 125.15
[1]) and four counts of assault in the third degree (§ 120.00 [2]),
defendant contends that her constitutional right to confrontation was
violated when a prosecution witness testified in disguise. Contrary to
defendant’s contention, the witness was not “in disguise.” In fact, the
witness was sworn as a male and acknowledged that his legal name was male
in nature, but that he wished to testify as a female, and the prosecutor
repeatedly referred to the witness as “Karen.” In any event, County
Court was not prevented from seeing the face or eyes of the witness or
from observing the demeanor of the witness (see People v Wrotten, 14 NY3d
33, 38-40). We reject defendant’s further contention that the conviction
is not supported by legally sufficient evidence and that the verdict is
against the weight of the evidence (see generally People v Bleakley, 69
NY2d 490, 495). Viewing the evidence in the light most favorable to the
prosecution (see People v Contes, 60 NY2d 620, 621), we conclude that the
People established by legally sufficient evidence that defendant
recklessly caused the death of another person (§ 125.15 [1]), and that
she recklessly caused physical injury to several other people (§ 120.00
[2]). Defendant contends that she lacked the intent to harm or kill;
however, intent is irrelevant to the issue whether her behavior was
reckless, and we conclude that there is a valid line of reasoning and
permissible inferences supporting the court’s finding of recklessness for
both crimes (see People v Heinsohn, 61 NY2d 855, 856; see generally
                                 -2-                           526
                                                         KA 09-02147

Bleakley, 69 NY2d at 495). Likewise, viewing the evidence in light of
the elements of the crimes in this nonjury trial, we conclude that the
verdict is not against the weight of the evidence (see generally People v
Danielson, 9 NY3d 342, 348-349). Finally, we conclude that the sentence
is not unduly harsh or severe, but we note that the certificate of
conviction erroneously recites that defendant is a violent felony
offender. The certificate of conviction therefore must be amended to
correct that error (see People v Dombrowski, 94 AD3d 1416, 1417, lv
denied 19 NY3d 959).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
