Opinion
No. 12010334.
2013-05-16
The PEOPLE of the State of New York v. Brian R. BECKER, Defendant.
Candace Lee, Esq., Assistant District Attorney. Matthew J. Mix, for Defendant.
Candace Lee, Esq., Assistant District Attorney. Matthew J. Mix, for Defendant.
THOMAS J. DiSALVO, J.
History of the Case
The defendant was convicted after a jury trial of Common Law Driving While Intoxicated in violation of VTL Section 1192(3) and Moved From Lane Unsafely in violation of VTL Section 1128(A).Prior to sentencing, defense counsel filed a motion to set aside said jury verdict pursuant to CPL 330.30, presumably under subsection (1) thereof which permits the court set aside the verdict of the jury on “Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.”
Defense counsel's motion did not designate a subsection of CPL 330.30. However, the issue he raises does not fall within the remaining subsections.
The People called as a witness Karen Lauler, who was the individual who called the 911 Center at about 3:17 A.M. on January 27, 2012 to report seeing a vehicle drive off the road in front of her home, knock over her mail box and end up on her neighbor's property. Defense counsel then cross-examined the said witness regarding what she saw and what she said on the 911 recording. On re-direct the assistant district attorney played the 911 recording to the jury, after having the disk containing the 911 recording in question marked as People's Exhibit 11. Upon the completion of the People's case the defense then demanded that the 911 recording be entered into evidence. The People refused to offer said recording into evidence. The court granted a trial order of dismissal as to the charge of refusal to take the breath test, VTL 1194(1)(b), but denied said motion regarding the remaining charges. The court denied defense counsel's motion for a continuance to obtain a witness to establish a foundation necessary to enter the 911 recording into evidence on behalf of the defendant. The Court then denied defense counsel's motion for a mistrial, because the People did not offer the 911 recording as evidence, despite having played the recording to the jury. The defendant then rested without presenting any evidence or witness testimony. During their deliberations the jury requested that it be able to review all the pictures entered into evidence. Despite representations to the contrary by defense counsel, the jury did not make a request to re-hear the 911 recording. The jury subsequently rendered the aforementioned guilty verdicts.
Issue Presented.
Was the fact that the 911 recording was not entered into evidence a basis for reversal or modification of the jury's verdict?
Legal Analysis.
The defendant's motion pursuant CPL 330.30(1) requires the court to review the trial through the eyes of an appellate court. An appellate court would not affirm a trial court that “... engage[d] in independent fact finding to set aside a verdict as against the weight of evidence ....“ (People v. Faust, 178 A.D.2d 352, 577 N.Y.S.2d 403, 404 [1st Dept 1991] ). In this case the 911 recording, although being somewhat inaudible, was not overall favorable to the defendant.The 911 recording was played from a disk on the prosecutor's laptop. Although one could easily hear and understand what was said by Ms. Lauler, it was difficult to hear and understand what was being said by the 911 operator. “A recording must be excluded from evidence if it is so inaudible and indistinct that a jury must speculate as to its contents (see People v. Carrasco, 125 A.D.2d 695, 696).” [People v. Morgan, 175 A.D.2d 930, 931, 573 N.Y.S.2d 765, 767 (2nd Dept.1991) ]. It cannot be said that the 911 recording was inconsistent with the testimony of Ms. Lauler or the arresting officer, Shaun Welch. Thus in that regard the jury's verdict was quite consistent with the evidence presented by the People.
In any event, “the determination of whether to admit a tape recording is left to the discretion of the trial judge (see People v. Lubow, 29 N.Y.2d 58, 68;People v. Warner, 126 A.D.2d 788 lv. denied 69 N.Y.2d 887). (People v. Gandy, 152 A.D.2d 909, 543 N.Y.S.2d 817 [4th Dept.1989] ). See also People v. Morgan at 766 wherein the court stated “Whether a tape recording should be admitted into evidence is within the discretion of the trial court. The determination is to be made after weighing the probative value of the evidence against the potential for prejudice (People v. Ryan, 121 A.D.2d 34, 65, cert. denied 481 U.S. 1058, opinion vacated on other grounds 134 A.D.2d 300).” However, the People did not offer the 911 recording into evidence. In essence the defendant argues that the court should have exercised its discretion to admit the recording on the sole basis that it was played for the jury during the People's redirect examination of Ms. Lauler. It would be an abuse of discretion for a trial court to admit an exhibit not offered as evidence by the party who simply referred to or marked for identification an exhibit. It should also be noted that defense counsel did not object to the playing of the 911 recording to the jury as being prejudicial. Instead he maintained that the failure to admit the recording was prejudicial to the defendant.
The testimony of the eye witness, Karen Lauler, and the testimony of the arresting officer, Shaun Welch, when taken together, presented the jury with overwhelming evidence of the defendant's guilt.Since the 911 recording was, as previously stated, not favorable to the defendant, despite some inaudibility, the defense cannot be heard to complain that the People did not offer it into evidence. In any event, in deciding a motion based on CPL 330.30(1) the court must review the evidence in a light most favorable to the People, give due deference to the jury's findings of credibility in determining if the jury's guilty verdict was proved beyond a reasonable doubt by legally sufficient evidence, and that the verdict was not against the weight of that evidence. (See People v.. Faust, 178 A.D.2d 352, 577 N.Y.S.2d 403, 404 [1st Dept.1991] ) As stated by the court in Faust “The various contentions raised by the defendant ... essentially are matters of credibility, as to which we find no basis to disturb the jury's verdict.” (Faust at 352).
Conclusion.
The motion of the defendant to set aside the jury's verdict, finding the defendant guilty of common law driving while intoxicated in violation of VTL Section 1192(3) and moved from lane unsafely in violation of VTL Section 1128(A), is hereby denied. This constitutes the decision and order of this court.