Opinion
2019-988 N CR
04-22-2021
The PEOPLE of the State of New York, Respondent, v. Latasha JOHNSON, Appellant.
Nassau County Legal Aid Society (Tammy Feman and Argun M. Ulgen of counsel), for appellant. Nassau County District Attorney (Yael V. Levy and Monica M. C. Leiter of counsel), for respondent.
Nassau County Legal Aid Society (Tammy Feman and Argun M. Ulgen of counsel), for appellant.
Nassau County District Attorney (Yael V. Levy and Monica M. C. Leiter of counsel), for respondent.
PRESENT: TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with petit larceny ( Penal Law § 155.25 ), based upon allegations that defendant stole certain merchandise from a Macy's store. Following a jury trial, defendant was convicted as charged. Defendant now appeals.
Defendant's challenge to the facial sufficiency of the accusatory instrument is without merit. To be legally sufficient, the factual portion of an information must contain "facts of an evidentiary character" ( CPL 100.15 [3] ; see CPL 100.40 [1] [a] ) that provide "reasonable cause to believe that the defendant committed the offense charged" ( CPL 100.40 [1] [b] ) and "[n]on-hearsay allegations [which], if true, [establish] every element of the offense charged and the defendant's commission thereof" ( CPL 100.40 [1] [c] ; see People v Barnes , 26 NY3d 986, 990 [2015] ; People v Matthew P. , 26 NY3d 332, 335 [2015] ). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v Casey , 95 NY2d 354, 360 [2000] ; accord People v Kalin , 12 NY3d 225, 230 [2009] ; People v Konieczny , 2 NY3d 569, 575 [2004] ).
Here, the information—comprising the misdemeanor complaint and a store asset protection employee's supporting deposition (see CPL 170.65 [1] )—alleged that, at a specified date and time, defendant removed a necklace, lip stick, lip gloss and skin care product from their display shelves inside the Macy's store without permission; concealed those items in her pocket; and attempted to leave the store in possession of the property without paying for it. These allegations were legally sufficient to charge defendant with petit larceny (see Penal Law § 155.25 ; People v Constable , 70 Misc 3d 140[A], 2021 NY Slip Op 50123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; People v Oliver , 2003 NY Slip Op 50994[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2003]). While the factual portion of the complaint and the supporting deposition do not contain an allegation which specifically states that Macy's was the owner of the subject merchandise, the aforementioned allegations—given a fair and not overly restrictive or technical reading—were sufficient to establish the element of ownership of the merchandise allegedly stolen (see People v Oliver , 2003 NY Slip Op 50994[U] ). To the extent that defendant contends that the information contained hearsay allegations (see CPL 100.40 [1] [c] ), defendant's claim was waived by her failure to raise it before the District Court (see People v Keizer , 100 NY2d 114, 121 [2003] ; People v Casey , 95 NY2d 354, 362-363 [2000] ).
Defendant's contention that the People's proof at trial varied from their theory as presented in the accusatory instrument is unpreserved for appellate review (see CPL 470.05 [2] ; People v Cortland , 66 Misc 3d 141[A], 2020 NY Slip Op 50150[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; see generally People v Udzinski , 146 AD2d 245 [1989] ). In any event, defendant's contention lacks merit. The alleged variance between the allegations of the accusatory instrument and the proof at trial does not amount to a change in the theory of the prosecution, but relates to matters that were "extraneous or immaterial to the charge[ ]" ( People v Grega , 72 NY2d 489, 497 [1988] ; see People v Charles , 61 NY2d 321, 327 [1984] ) and "constitutes merely an alteration in a factual incident that is still consistent with the theory presented" ( People v Beard , 148 AD3d 1745, 1746 [2017] [internal quotation marks omitted]). Therefore, defendant had "fair notice of what the People would attempt to prove" ( People v Grega , 72 NY2d at 496 ) and had ample opportunity to prepare a defense and avoid prosecution for the same crime (see People v Osinowo , 28 AD3d 1011, 1013 [2006] ; People v Cook , 253 AD2d 498, 499 [1998] ; People v Haimovici , 30 Misc 3d 139[A], 2011 NY Slip Op 50230[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v Dimuzio , 7 Misc 3d 134[A], 2005 NY Slip Op 50722[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; People v Wilfong , 146 Misc 2d 577, 579 [App Term, 1st Dept 1990] ).
There is no merit to defendant's contention that the District Court erred in admitting into evidence the surveillance video depicting the incident because a proper foundation for its admission was not laid. "The decision to admit ... videotape evidence generally rests ... within a trial court's founded discretion" ( People v Patterson , 93 NY2d 80, 84 [1999] ), and a videotape is normally authenticated by the testimony of a participant in the recorded event or of a witness to the event or to its recording, such as the videographer, that the videotape is a complete and accurate representation of the subject matter depicted (see Zegarelli v Hughes , 3 NY3d 64, 69 [2004] ; People v Patterson , 93 NY2d at 84 ; People v Ely , 68 NY2d 520, 527 [1986] ). The surveillance video at issue here was properly authenticated by the asset protection employee, who had witnessed most of the events depicted on the videotape, identified defendant and himself in the video after viewing it in court, and testified that the video was a fair and accurate depiction of the events that had actually transpired (see People v Alston , 169 AD3d 1, 4-5 [2019] ; People v Scullion , 137 AD3d 645, 645 [2016] ; People v Fondal , 154 AD2d 476, 477 [1989] ; People v Williams , 34 Misc 3d 148[A], 2012 NY Slip Op 50179[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).
Defendant's challenge to the legal sufficiency of the evidence supporting her conviction is only partially preserved for appellate review (see CPL 470.05 [2] ; People v Bowen , 53 Misc 3d 149[A], 2016 NY Slip Op 51657[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, viewing the evidence in the light most favorable to the People (see People v Delamota , 18 NY3d 107, 113 [2011] ; People v Acosta , 80 NY2d 665, 672 [1993] ), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Danielson , 9 NY3d 342, 349 [2007] ). Furthermore, upon the exercise of our factual review power (see CPL 470.15 [5] ; People v Danielson , 9 NY3d at 348-349 ), and according great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane , 7 NY3d 888, 890 [2006] ; People v Bleakley , 69 NY2d 490, 495 [1987] ), we find that the guilty verdict was not against the weight of the evidence.
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, P.J., EMERSON and DRISCOLL, JJ., concur.