Opinion
No. 2022-216 N CR
04-11-2024
The People of the State of New York, Respondent, v. John Fischetto, Appellant.
Mischel & Horn, P.C. (Richard E. Mischel of counsel), for appellant. Nassau County District Attorney (Judith R. Sternberg and Hilda Mortensen of counsel), for respondent.
Unpublished Opinion
Mischel & Horn, P.C. (Richard E. Mischel of counsel), for appellant.
Nassau County District Attorney (Judith R. Sternberg and Hilda Mortensen of counsel), for respondent.
PRESENT: JERRY GARGUILO, P.J., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeals from a judgment of the District Court of Nassau County, First District (Valerie Alexander, J.), rendered March 18, 2022, and an amended judgment of that court rendered May 4, 2022. The amended judgment convicted defendant, after a nonjury trial, of assault in the third degree, and imposed sentence. The appeal from the amended judgment brings up for review so much of an order of that court issued May 21, 2021 as granted the People's application to compel defendant to disclose an audio recording of an altercation between defendant and the complainant, before cross-examination of the complainant concerning the recording.
ORDERED that the appeal from the judgment rendered March 18, 2022 is dismissed as that judgment was superseded by the amended judgment rendered May 4, 2022; and it is further, ORDERED that the amended judgment of conviction is affirmed.
Following an altercation with his neighbor (the complainant), defendant was initially charged with assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). The charge of assault in the second degree was subsequently reduced to assault in the third degree (Penal Law § 120.00 [1]).
At a nonjury trial, the complainant testified that, after a verbal dispute regarding the placement of a 12-inch-long steel rebar in the complainant's lawn, defendant initiated a physical altercation with the complainant during which defendant used the rebar to strike the complainant in the head and ear. The People introduced into evidence footage of the altercation captured by the complainant's security camera, which footage contained no sound. Defendant, in support of his claim that his use of force against the complainant was justified, sought, on cross-examination of the complainant, to use an audio recording of the altercation to refresh the complainant's recollection of statements that he had made to defendant during the altercation. The People objected on the ground that defendant had not turned the recording over prior to trial (see CPL 245.20 [4]; 245.50 [2]) and requested, in the event the court allowed defendant to use the recording, that the People be given time to review the recording and prepare the complainant for cross-examination concerning the recording. In an order issued May 21, 2021, the District Court declined to preclude the use of the recording but adjourned the matter pursuant to the People's request. Following the trial, the District Court convicted defendant of assault in the third degree and acquitted him of criminal possession of a weapon in the fourth degree, and imposed a sentence consisting of, among other things, a term of three years' probation.
On appeal, defendant argues that the evidence was legally insufficient; that the verdict was against the weight of the evidence; that the District Court's order compelling defendant to turn over the audio recording before cross-examination of the complainant concerning the recording violated defendant's right to confrontation; and that the sentence of three years' probation should be modified to a conditional discharge.
Defendant's legal insufficiency claim is not preserved for appellate review since he failed to raise these same arguments with specificity before the District Court (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 492 [2008]; People v Gray, 86 N.Y.2d 10, 19 [1995]). However, upon a defendant's request, this court must conduct a weight of the evidence review (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). In conducting this review, we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]). Moreover, we decline defendant's invitation to "speculate concerning the factual determinations that underlay the [mixed] verdict because what might appear to be an irrational verdict may actually constitute a [factfinder's] permissible exercise of mercy or leniency" (People v Horne, 97 N.Y.2d 404, 413 [2002]; see also People v Rayam, 94 N.Y.2d 557, 562-563 [2000]; People v Bess, 142 A.D.3d 1098, 1099 [2016]; People v Choi, 137 A.D.3d 808, 809 [2016]; People v Barnes, 49 Misc.3d 131 [A], 2015 NY Slip Op 51429[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Upon reviewing the record here, we are satisfied that the verdict convicting defendant of assault in the third degree was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 643-646 [2006]).
Furthermore, the District Court did not fail to give the evidence the weight it should have been accorded by rejecting defendant's justification defense. The complainant testified, and the footage from the complainant's security camera shows, that defendant initiated the physical altercation by knocking the complainant's glasses off his face. This evidence established that defendant was the initial aggressor and, therefore, the justification defense was not available to him (see Penal Law § 35.15 [1] [b]; People v Petty, 7 N.Y.3d 277, 285 [2006]; People v McGahan, 59 Misc.3d 141 [A], 2018 NY Slip Op 50652[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Defendant's contention that the compelled disclosure of the audio recording violated his right to confrontation is unpreserved for appellate review (see CPL 470.05 [2]; People v Liner, 9 N.Y.3d 856, 856-857 [2007]; People v Fleming, 70 N.Y.2d 947, 948 [1988]; People v Easley, 171 A.D.3d 785, 787 [2019], affd 38 N.Y.3d 1010 [2022]) and, in any event, without merit, since he was afforded the "opportunity for effective cross-examination" of the complainant (Delaware v Fensterer, 474 U.S. 15, 20 [1985] [emphasis omitted]; see also People v Smith, 27 N.Y.3d 652, 659-660 [2016]; Easley, 171 A.D.3d at 787).
Contrary to defendant's final contention, the District Court's imposition of a term of three years' probation was not excessive (see People v Suitte, 90 A.D.2d 80 [1982]), and no extraordinary circumstances exist that warrant a modification of the sentence (see People v McNeil, 181 A.D.3d 716, 717 [2020]; People v Shahriar, 72 Misc.3d 139 [A], 2021 NY Slip Op 50779[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]).
Accordingly, the amended judgment of conviction is affirmed.
GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.