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

115
KA 11-02360
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD TACKENTIEN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered June 22, 2011. The judgment
convicted defendant, upon a nonjury verdict, of driving while
intoxicated, a class E felony (two counts), criminally negligent
homicide and failure to drive on right side of road.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, two counts of driving while
intoxicated (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [c]
[i]) and one count of criminally negligent homicide (Penal Law §
125.10). We reject defendant’s contention that the evidence is
legally insufficient to support his conviction of criminally negligent
homicide. Viewing the evidence in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), we conclude that the
People “demonstrated that defendant engaged in conduct exhibiting ‘the
kind of seriously blameworthy carelessness,’ ” the seriousness of
which “ ‘would be apparent to anyone who shares the community’s
general sense of right and wrong’ ” (People v Asaro, 21 NY3d 677, 685,
quoting People v Cabrera, 10 NY3d 370, 377; see People v Conway, 6
NY3d 869, 871-872; People v Kraft, 278 AD2d 591, 591-592, lv denied 96
NY2d 864; see generally People v Bleakley, 69 NY2d 490, 495). 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 further conclude that the verdict is not against
the weight of the evidence (see generally Bleakley, 69 NY2d at 495).

     Although we agree with defendant that Supreme Court erred in
admitting in evidence photographs of the victim’s body taken at the
accident scene and during the autopsy, we conclude that the error is
                                 -2-                              115
                                                            KA 11-02360

harmless (see People v Holley, 48 AD3d 481, 481; see generally People
v Crimmins, 36 NY2d 230, 241-242). Contrary to defendant’s further
contention, the court properly sentenced him to five years of
probation pursuant to Penal Law § 60.21 (see People v O’Brien, 111
AD3d 1028, 1029; People v Panek, 104 AD3d 1201, 1201-1202, lv denied
21 NY3d 1018).

     Finally, the sentence is not unduly harsh or severe.




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