SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

70 

KA 14-01891 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DAVID E. BARNES, DEFENDANT-APPELLANT.

 

GANGULY BROTHERS, PLLC, ROCHESTER (ANJAN K. GANGULY OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County

(Francis A. Affronti, J.), rendered October 14, 2014. The judgment

convicted defendant, upon a nonjury verdict, of driving while

intoxicated, a class E felony, and aggravated unlicensed operation of

a motor vehicle in the first 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 driving while intoxicated as a class E felony

(Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]) and aggravated

unlicensed operation of a motor vehicle in the first degree (§ 511 [3]

[a] [ii]), defendant contends that the evidence is legally

insufficient to establish that he was operating the vehicle at the

time of the accident. We reject that contention. “ ‘It is well

settled that, even in circumstantial evidence cases, the standard for

appellate review of legal sufficiency issues is whether any valid line

of reasoning and permissible inferences could lead a rational person

to the conclusion reached by the [factfinder] on the basis of the

evidence at trial, viewed in the light most favorable to the People’ ”

(People v Annis, 126 AD3d 1525, 1525-1526; see People v Bleakley, 69

NY2d 490, 495). Here, we conclude that “ ‘there is ample evidence in

the record from which [Supreme Court] could have reasonably concluded

that defendant was indeed driving at the time of the accident’ ”

(Annis, 126 AD3d at 1526). When a police officer arrived on the

scene, he observed that a vehicle had struck a support pillar for an

interstate highway. The officer concluded that the accident had

happened shortly before his arrival because, among other things, the

vehicle’s engine was still warm. There were footprints in the snow

leading away from the driver’s side only, the only airbag that had

deployed was on the driver’s side, and the backseat contained two
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KA 14-01891 

children’s car seats that appeared to leave no room for an adult to

sit. Defendant was subsequently located at a gas station and,

although he denied to the police that he had been the driver, the gas

station was in close proximity to the accident scene, defendant

exhibited signs of alcohol consumption and intoxication, and defendant

admitted that he had been in the vehicle (see id.). Contrary to

defendant’s further contention, we conclude that, to the extent that

the People’s proof included inadmissible hearsay, any error in

admitting such proof in evidence is harmless. “In this nonjury case,

the court is presumed to have considered only competent evidence in

reaching the verdict . . . , and there is no basis in this record to

conclude that the court did otherwise” (People v Clinkscales, 277 AD2d

930, 931, lv denied 96 NY2d 733). Finally, we conclude that, viewing

the evidence in light of the elements of the crimes in this nonjury

trial (see People v Danielson, 9 NY3d 342, 349), the verdict is not

against the weight of the evidence (see generally Bleakley, 69 NY2d at

495).

Entered: March 18, 2016 Frances E. Cafarell

Clerk of the Court