Opinion
No. 2008–336NCR.
2011-12-27
The PEOPLE of the State of New York, Respondent, v. Millicent FALLETTA, Appellant.
Present: TANENBAUM, J.P., NICOLAI and MOLIA, JJ.
Appeal from a judgment of the District Court of Nassau County, First District (Edmund M. Dane, J., at trial; Valerie Alexander, J., at sentencing), rendered January 8, 2008. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with harassment in the second degree (Penal Law § 240.26[1] ). At a nonjury trial, the complainant testified that defendant had hit him in the face. In addition, the prosecution introduced into evidence, over defendant's objection, what the complainant testified was a DVD copy of a digital video camera recording that was made by him, which depicted at least portions of the incident. The District Court found defendant guilty of the charged offense.
Upon defendant's appeal, the DVD could not be located and the appeal was held in abeyance for the District Court to conduct a reconstruction hearing ( People v. Falletta, 31 Misc.3d 144[A], 2011 N.Y. Slip Op 50930[U] ). At the hearing, the complainant presented a new disc which was viewed by the court and the parties. Following the hearing, the court found that the disc presented by the complainant was an exact copy of the DVD that had been admitted into evidence at trial. The disc shows defendant making a slapping motion with her hand in the [Slip Op. 2]direction of the person holding the camera and a sound is audible. In another scene, defendant again makes a slapping motion with her hand, and a slapping sound is audible.
Contrary to defendant's contention, the People laid a proper foundation for the admission of the DVD into evidence at trial since the complainant, who had recorded the events, testified that the DVD accurately depicted the events that had occurred ( see People v. Patterson, 93 N.Y.2d 80, 84 [1999];People v. Ely, 68 N.Y.2d 520 [1986];People v. Roberts, 66 AD3d 1135 [2009] ). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620 [1983] ), we find that the DVD evidence, even though it did not depict any actual physical contact by defendant with the complainant, together with the complainant's testimony, was legally sufficient to establish beyond a reasonable doubt that, with the intent to harass, annoy or alarm the complainant, defendant had struck the complainant, in violation of Penal Law § 240.26(1).
We have reviewed defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit.
Accordingly, the judgment convicting defendant of harassment in the second degree is affirmed.