Opinion
2013-04-25
The PEOPLE of the State of New York, Respondent, v. Wendy GABRIEL, Defendant–Appellant.
Stanley Neustadter, Cardozo Appeals Clinic, New York (Philip A. Wellner of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Anthony Lekas of counsel), for respondent.
Stanley Neustadter, Cardozo Appeals Clinic, New York (Philip A. Wellner of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Anthony Lekas of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered November 20, 2009, as amended December 16, 2009, convicting defendant, after a jury trial, of assault in the second degree, aggravated criminal contempt (two counts) and endangering the welfare of a child (two counts), and sentencing him to an aggregate term of seven years, unanimously affirmed.
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including its evaluation of any inconsistencies in testimony. The fact that the jury acquitted defendant of charges arising from other incidents does not warrant a different conclusion ( see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).
The court properly exercised its discretion in admitting a recording of a 911 call, which qualified as both an excited utterance and a present sense impression. The tape's probative value outweighed any potential prejudicial effect ( see e. g. People v. Harris, 99 A.D.3d 608, 952 N.Y.S.2d 552 [1st Dept. 2010] ). The People were not required to make a showing of necessity ( see People v. Buie, 86 N.Y.2d 501, 509, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995] ), and the tape was not inflammatory. To the extent the tape demonstrated the caller's emotional distress, this tended to enhance the tape's reliability as an excited utterance. Finally, any error was harmless, particularly because defendant was acquitted of all charges arising from the incident to which the tape related.