People v. Nguyen

66 A.D.3d 1367, 885 N.Y.S.2d 677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2009
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered July 17, 2006. The judgment convicted defendant, upon a nonjury verdict, of manslaughter in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of one count of manslaughter in the second degree (Penal Law § 125.15 [1]) and two counts of endangering the welfare of a child (§ 260.10 [1], [2]).

Defendant failed to preserve for our review his contention that Supreme Court erred in admitting certain expert medical testimony presented by the People on the ground that the testimony lacked a proper foundation or was speculative (see CPL 470.05 [2]) and, in any event, that contention lacks merit (see generally Prince, Richardson on Evidence § 7-315 [Farrell 11th ed]).

Contrary to defendant’s further contention, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The court was presented with conflicting expert testimony concerning the cause of death of the victim, and the court was entitled to credit the expert testimony presented by the People (see People v Fields, 16 AD3d 142 [2005], lv denied 4 NY3d 886 [2005]; see generally People v Miller, 91 NY2d 372, 380 [1998]). Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.E, Smith, Peradotto, Carni and Green, JJ.