Opinion
12551 Ind. No. 1434/14, 1439/14 Case No. 2018-520
12-03-2020
The PEOPLE of the State of New York, Respondent, v. Debbie BUSGITH, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.
Friedman, J.P., Kapnick, Gesmer, Kern, Shulman, JJ.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J.), rendered May 5, 2017, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the fourth degree, and sentencing her to an aggregate term of 6 months, with 5 years' probation, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. A videotape of the incident, coupled with other evidence, supports the conclusion that defendant is the person who stabbed the victim. The physical injury element was met by the victim's substantial pain, which was established by, among other things, his "subjective description of what he felt" ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; see also People v. Guidice, 83 N.Y.2d 630, 636–637, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ). The victim's hospital treatment immediately after the incident, while not dispositive, is another "indication that his pain was significant" ( Chiddick, 8 N.Y.3d at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ).
The People laid a proper foundation to admit post-incident surveillance video footage recorded by cameras installed in an apartment building near the crime scene, by establishing an overlap and consistency between the beginning of that exhibit and an uncontested surveillance video, as well as by presenting testimony from the building's superintendent and the detective who recovered the videos (see People v. Patterson, 93 N.Y.2d 80, 84–85, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ). In any event, any error in receiving the videotape at issue, which only depicted defendant's later conduct evincing her consciousness of guilt, was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).