People v. Mosher , 635 N.Y.S.2d 873 ( 1995 )

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment after a jury trial convicting her of manslaughter in the second degree (Penal Law § 125.15 [1]). We conclude that the evidence, when viewed most favorably to the People (see, People v Thompson, 72 NY2d 410, 413, rearg denied 73 NY2d 870; People v Ford, 66 NY2d 428, 437), is sufficient to justify the conclusion of the jury that defendant recklessly caused the death of her nephew (see, People v Johnstone, 145 AD2d 902, lv denied 73 NY2d 979; People v Osburn, 124 AD2d 1048, lv denied 69 NY2d 831). Defendant’s contention that the moral certainty test applicable to circumstantial evidence cases should have been applied by the court is unpreserved for our review (see, CPL 470.05 [2]). In any event, the prosecution’s case did not depend entirely upon circumstantial evidence (see, People v Barnes, 50 NY2d 375, 379-380). From our examination of the record, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Allegany County Court, Sprague, J. — Manslaughter, 2nd Degree.) Present — Denman, P. J., Green, Fallon, Doerr and Boehm, JJ.