People v. Smith

Per Curiam.

Appeal from a judgment convicting appellant of the crime of criminal negligence in the operation of a vehicle resulting in death. (Penal Law, § 1053-a.) There was an abundance of convincing evidence, both direct and circumstantial, that defendant’s automobile, operated by him at very high speed — in excess of 70 miles per hour according to two witnesses — on a busy street at a time in the early evening when stores and other business places were open, struck two adult pedestrians, inflicting massive injuries of almost unbelievable severity which caused the instant death of each. The evidence of guilt is comparable to, and perhaps stronger than that upon which we sustained the conviction in People v. Mills (10 A D 2d 395). There appears in the record no error of sufficient substance to warrant reversal; none, certainly, in the face of the overwhelming proof of defendant’s guilt. We find, however, that neither the record nor defendant’s history warranted the sentence to imprisonment for not less than two nor more than five years. Judgment modified, on the law and the facts, by reducing the term of the imprisonment thereby imposed to a term of not less than one year nor more than one year and two months and, as so modified, affirmed. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.