PEOPLE v. McNANEY

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Nichole McNANEY, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., GREEN, HAYES, KEHOE and LAWTON, JJ. Lawrence J. Vilardo, Buffalo, for defendant-appellant. Steven Meyer, White Plains, for plaintiff-respondent.

Defendant appeals from a judgment convicting her upon her plea of guilty of criminally negligent homicide (Penal Law § 125.10) and sentencing her to an indeterminate term of incarceration of 1 to 3 years.   Defendant admitted that she secretly gave birth to a baby boy, who was born alive, and that she failed to do anything to care for the infant, resulting in his death.   Defendant was 19 years old at the time she committed the offense and lived at home with her parents.   She concealed her pregnancy from everyone but the infant's father.   After giving birth, she placed the deceased infant in a garbage can and later placed him in plastic bags next to her bed, where he remained for two days.

We reject defendant's contention that the sentence is unduly harsh and severe.   Supreme Court appropriately balanced defendant's lack of a prior criminal history and other circumstances in defendant's favor with the fact that defendant committed a crime that resulted in the death of an infant.   The court did not abuse its discretion in imposing a term of incarceration.   Defendant's contention that the court failed to hold a hearing to determine the validity of certain statements made by the infant's father found in the presentence report is not preserved for our review (see, CPL 470.05[2] ), and in any event is without merit.

Judgment unanimously affirmed.

MEMORANDUM: