| People v Pendell |
| 2018 NY Slip Op 05899 [164 AD3d 1063] |
| August 23, 2018 |
| Appellate Division, Third Department |
[*1](August 23, 2018)
| The People of the State of New York,Respondent, v Perry Pendell, Appellant. |
Matthew C. Hug, Albany, for appellant, and appellant pro se.
Paul Czajka, District Attorney, Hudson (James Carlucci of counsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Columbia County (Koweek, J.),rendered August 19, 2014, upon a verdict convicting defendant of the crimes of rape in thesecond degree (nine counts), criminal sexual act in the second degree, possessing a sexualperformance by a child (four counts) and criminal solicitation in the second degree.
In May 2013, defendant—then 48 years old—was charged in a 27-countindictment (hereinafter the first indictment) with various offenses stemming from his allegedsexual contact, over a period of several months, with a 14-year-old girl (hereinafter the victim)that he met through an online adult dating service. While awaiting prosecution on these chargesin jail, defendant approached another inmate about having the victim murdered and, as a result,was charged, in a second indictment (hereinafter the second indictment), with criminalsolicitation in the second degree. County Court thereafter consolidated the two indictments.Following a jury trial, defendant was convicted of nine counts of rape in the second degree, onecount of criminal sexual act in the second degree, four counts of possessing a sexual performanceby a child and one count of criminal solicitation in the second degree. Defendant was sentencedto prison terms of seven years on each of his convictions for rape in the second degree, each to befollowed by 10 years of postrelease supervision, 1
Defendant challenges his convictions as unsupported by legally sufficient evidence andagainst the weight of the evidence. Initially, defendant preserved his legal sufficiency argumentonly with respect to the four counts of possessing a sexual performance by a child by moving,pretrial, to dismiss those counts on the same grounds that he now raises on appeal (see People v Finch, 23 NY3d 408,412-414 [2014]; People v Mahboubian, 74 NY2d 174, 188 [1989]).[FN1] Inasmuch as defendant's motionfor a trial order of dismissal, made at the close of the People's proof and renewed at the close ofall of the proof, was not " 'specifically directed' at the error[s] being urged" on appeal, hislegal sufficiency challenge to the remainder of his convictions is unpreserved (People v Hawkins, 11 NY3d 484,492 [2008], quoting People v Gray, 86 NY2d 10, 19 [1995]; see People v Stokes, 159 AD3d1041, 1042 [2018]). Nevertheless, as part of our weight of the evidence review, we willnecessarily assess whether each element of the charged crimes was proved beyond a reasonabledoubt (see People v Danielson, 9NY3d 342, 349 [2007]; People vChaneyfield, 157 AD3d 996, 996 [2018], lv denied 31 NY3d 1012 [2018]; People v Holmes, 151 AD3d 1181,1182 [2017], lv denied 29 NY3d 1128 [2017]).
Defendant argues that because the photographs underlying the four counts of possessing asexual performance by a child do not depict genitalia, as required, they are not supported bylegally sufficient evidence. "A person is guilty of possessing a sexual performance by a childwhen, knowing the character and content thereof, he [or she] knowingly has in his [or her]possession or control, or knowingly accesses with intent to view, any performance whichincludes sexual conduct by a child less than [16] years of age" (Penal Law§ 263.16). Under this particular section of the Penal Law, "[s]exual conduct"means, among other things, the "lewd exhibition of the genitals" (Penal Law§ 263.00 [3]). The lewd exhibition of any body part other than the genitals does notfall within the meaning of sexual conduct, as defined in Penal Law § 263.00 (3)(see People v Pinkoski, 300 AD2d 834, 836-837 [2002], lv denied 99 NY2d 631[2003]).
The photographs that form the basis for defendant's convictions on counts 21, 22 and 27 ofthe first indictment depict only the victim's bare chest, which does not constitute "lewd exhibitionof the genitals," as required for a conviction for possessing a sexual performance by a child(see Penal Law §§ 263.00 [3]; 263.16; People v Pinkoski, 300AD2d at 836-837). Accordingly, defendant's convictions on counts 21, 22 and 27 of the firstindictment must be reversed and those counts of the first indictment dismissed (see People vPinkoski, 300 AD2d at 836-837). As to defendant's remaining conviction for possessing asexual performance by a child (count 20 of the first indictment), we find that the underlyingphotograph, which depicts the victim posing completely nude, save for a portion of one pant leg,constitutes the lewd exhibition of genitalia within the meaning of Penal Law§ 263.16 (see generally People v Horner, 300 AD2d 841, 842-843 [2002];compare People v Gibeault, 5 AD3d952, 954 [2004]). As the evidence further established that the victim was under the age of 16at the time that the underlying photograph was taken and that defendant knowingly possessed thephotograph, which was ultimately found on his cell phone, defendant's conviction on count 20 ofthe first indictment is supported by legally sufficient evidence (see Penal Law§ 263.16; People v Horner, 300 AD2d at 843-844) and was not against theweight of the evidence (see People vSparagano, 153 AD3d 1367, 1367-1368 [2017], lv denied 30 NY3d 1063[2017]).
[*3] As to defendant's contention that hisremaining convictions are against the weight of the evidence, we have reviewed the proofsupporting each conviction and are satisfied that the weight of the credible evidence supportsdefendant's convictions on nine counts of rape in the second degree (counts 1, 3, 5, 7, 9, 11, 13,15 and 17 of the first indictment) (see Penal Law § 130.30 [1]; People v Richards, 78 AD3d 1221,1222-1224 [2010], lv denied 15 NY3d 955 [2010]; People v Hebert, 68 AD3d 1530, 1531-1532 [2009], lvdenied 14 NY3d 841 [2010]; Peoplev Workman, 56 AD3d 1155, 1156-1157 [2008], lv denied 12 NY3d 789 [2009];People v Gray, 15 AD3d 889,890 [2005], lv denied 4 NY3d 831 [2005]), one count of criminal sexual act in the seconddegree (count 2 of the first indictment) (see Penal Law § 130.45 [1];People v Richards, 78 AD3d at 1222-1224) and one count of criminal solicitation in thesecond degree (count 1 of the second indictment) (see Penal Law § 100.10;People v Adamek, 69 AD3d979, 980 [2010], lv denied 14 NY3d 797 [2010]; People v Bongarzone, 116AD2d 164, 168 [1986], affd 69 NY2d 892 [1987]).
The victim testified at trial that, in or around October 2012, when she was 14 years old, shemet a man named Jason—whom she later identified as defendant—through anonline adult dating service wherein she represented that she was 19 years old and seeking to meetadult males for sexual contact. According to the victim, on approximately 10 to 13 occasionsthereafter, defendant picked her up at her home and brought her to a nearby motel, where the twowould engage in "[n]ormal" sex and oral sex.[FN2] She testified that, after their first encounter, shecontinued to have sexual contact with defendant only because he would provide her withmarihuana. As established by text messages between defendant and the victim, the victimexpressed to defendant in mid-January 2013 that she no longer wanted to have sex with him, towhich defendant replied that if she did not "pay as normal," she would have to purchase themarihuana. The text messages further reveal that defendant continued to contact the victimthroughout the following month regarding a debt that she owed him. In particular, defendantstated that if she could not come up with the required money by the end of the month, he wouldhave to take "extreame [sic] measures" and send someone to collect the debt. The victim testifiedthat she attempted suicide in March 2013 and, while hospitalized thereafter, disclosed herinvolvement with defendant to her therapist and parents.
In April 2013, law enforcement conducted a sting operation in which an investigator sentdefendant text messages from the victim's cell phone requesting that the two meet to exchangesex for marihuana and to satisfy the victim's outstanding debt. When defendant arrived at theprearranged location, expecting to meet the victim, he was apprehended by the police. Asubsequent search of his person resulted in the recovery of a prescription bottle of erectiledysfunction medication that had been filled just hours earlier. Notably, a pill was missing fromthat prescription. Also found on defendant's person was a prepaid cell phone, which defendantadmitted using only to communicate with the victim and for which he registered a falseaddress.
After the sting operation, police confiscated two computers found at defendant's residence,one of which contained a pornographic audio and video recording depicting a male and femaleengaged in sexual intercourse. The audio and video recording was admitted into evidence andplayed for the jury more than once, and the voices of both the male and the female could beheard. Significantly, the victim identified herself as the female in still shots taken from [*4]the recording. Further, the bracelet worn by the female in therecording was identified by multiple witnesses as belonging to the victim. Room rental slips fromthe motel, which were admitted into evidence, indicated that defendant rented a room at the samemotel on the nine dates specified in the indictment, as well as the day of the sting operationresulting in his apprehension.[FN3] Moreover, certified records from an EZ-Passregistered in defendant's name demonstrated that, on all but one of the dates specified in theindictment, one of the registered vehicles—either a Ford F350 or a Mercedes—usedthe EZ-Pass at a toll plaza not far from Columbia County.[FN4]
Defendant testified on his own behalf and asserted that all but his initial interaction with thevictim was induced by threats made by the victim. Defendant admitted that he sought out thevictim online for sex. However, he testified that, when he picked her up for their first encounter,he immediately realized that she was under 18 years of age and informed her that he could nothave sex with her. According to defendant, the victim became enraged and threatened to tell hertherapist about him if he did not provide her with sex and marihuana. Defendant testified that,worried that the victim would accuse him of rape and perceiving no choice but to appease her, heagreed to bring the victim to a motel so that she could smoke the marihuana he had. Defendantadmitted on cross-examination to supplying a false home address on the room rental slipsbeginning on the third rental. While defendant acknowledged staying at the motel on the dates inquestion, he insisted that the victim was only present on six or seven occasions. Defendant,however, denied having sexual contact with the victim on any occasion and insisted that, fearfulthat the victim would follow through on her threats, he continued to drive from New Jersey tomeet with the victim for the sole purpose of providing her with marihuana. Defendant alsomaintained that he was not the male in the audio and video recording recovered from hiscomputer.
As to defendant's conviction for criminal solicitation in the second degree, an inmateincarcerated with defendant testified that defendant initially asked him, through passed noteswritten on small slips of paper, if he had any friends who would say that they were at a certainmotel at a certain time with the victim but, thereafter, inquired if he knew anyone who could behired to murder the victim. In these notes, which were ultimately turned over to law enforcement,defendant wrote that a "disappearing act would be best, like [the victim] ran away orsomething," and that the person hired would "have to try to catch [the victim] alone or hit her broup with a needle then take her for a ride . . . and put her in a very deep hole."The notes indicated that defendant initially offered "100G" for the job, with a "[b]onus if done byAug 29 2013." An investigator testified at trial that the cooperating inmate was instructed tocontact defendant to raise the price for murdering the victim to $125,000, and that defendantagreed, adding that, "[Making] the [p]roblem 'disappear' is important! [But] so is your [boy's][*5]testimony."[FN5] The inmate also testified that he obtained, fromdefendant's cell, a hand-drawn map of the area in and around the victim's residence, which wasultimately received by law enforcement and introduced into evidence at trial.
Defendant presented a duress defense to the solicitation charge. He testified that, uponarriving in jail, he was immediately threatened by other inmates who had heard about his charges.According to defendant, he confided in the cooperating inmate and shared that he was trying tofind the individual who he believed actually had sex with the victim. Defendant admitted that hehad offered the inmate money to find a minor who would be willing to testify that he had sexwith the victim on the dates in question. Defendant went on to testify, however, that, when hedecided not to go through with that plan, the cooperating inmate threatened his wife and forcedhim to write the notes. According to defendant, he drew the map taken from his cell for hisattorney and investigator, in preparation for trial. Upon consideration of all the foregoingevidence, which raised issues of credibility for the jury to assess, we conclude that the jury'sverdict was amply supported by the weight of the evidence.
Of the many evidentiary objections that defendant lodged throughout the trial, he specificallychallenges on appeal the admission of over 25 photographic exhibits into evidence, most ofwhich were recovered from either defendant's prepaid cell phone or one of his home computers.Defendant argues that County Court erroneously admitted the exhibits into evidence. Wedisagree.
At issue is whether a proper foundation was proffered validating the authenticity of thephotographs, eight of which depicted the victim in various stages of undress.[FN6] The purpose of requiring ashowing of authenticity is to confirm that the evidence is genuine. A photograph must be shownto "accurately represent[ ] the subject matter depicted" (People v Byrnes, 33 NY2d 343,347 [1974]). Authentication generally requires a witness to testify that a photograph is accurateand has not been altered (see People vPrice, 29 NY3d 472, 477 [2017]). Even so, " '[t]he foundation necessary toestablish [authenticity] may differ according to the nature of the evidence sought to beadmitted' " (id. at 476, quoting People v McGee, 49 NY2d 48, 59[1979]).
Although the foundational questioning here was brief, the controlling point is that the victimidentified herself in all of the photographs. She confirmed that she took several of the [*6]photographs of herself in her room at home and sent thosephotographs to defendant. She also explained that defendant took some of the photographs of herat the motel, where he admitted he took her on multiple occasions. All of the photographs of thevictim were obtained from either defendant's cell phone or his home computer. We thus have thevictim authenticating, as both photographer and subject, the pictures that she took of herself andthat she provided to defendant. As for photographs taken by defendant at the hotel, the victim, assubject, confirmed that she was depicted in the photographs, without qualification. We also knowfrom her testimony that these photographs were taken between October 2012 and March 2013.There was also explicit testimony from Constance Leege, a special agent with the United StatesSecret Service, explaining the process that she utilized to extract seven of the photographs fromdefendant's cell phone, and testimony from her colleague, Robert Lupe, who performed aforensic analysis of defendant's computer to extract the remaining photographic image.
Given the foregoing, we find that the victim's testimony adequately authenticated thephotographs taken of her person and thus were properly received into evidence (see People vPrice, 29 NY3d at 476-477). This testimony tells us not only who was depicted in thephotographs, but also who took the photographs, the time period during which the photographswere taken, where the photographs were taken and the underlying circumstances (comparePeople v Price, 29 NY3d at 475). Any error with respect to the remaining backgroundphotographs was harmless. In light of the overwhelming evidence of defendant's guilt, as detailedabove, there is not a significant probability that defendant would have been acquitted had thesephotographs—the majority of which were cumulative and depicted items such as thevictim's bedroom, defendant's car and defendant's computer—not been admitted intoevidence (see People v Cummings,157 AD3d 982, 986 [2018], lv denied 31 NY3d 982 [2018]; People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant's contention, County Court did not abuse its discretion in consolidatingthe two indictments (see CPL 200.20 [2] [b]; [4]), as evidence of the offense charged inthe second indictment—criminal solicitation in the second degree—is material andadmissible in a trial of the offenses charged in the first indictment (see People v Morman, 145 AD3d1435, 1437 [2016], lv denied 29 NY3d 999 [2017]; People v Watson, 281AD2d 691, 693 [2001], lv denied 96 NY2d 925 [2001]), and evidence of the crimescharged in the first indictment would be material and admissible in a trial on the criminalsolicitation charge to demonstrate motive (see People v Bongarzone, 69 NY2d 892, 895[1987]).
Next, we are not persuaded by defendant's contention that County Court violated his right toconfrontation by restricting his questioning of the victim as to her use of the adult websitethrough which she made contact with defendant. Initially, we do agree with defendant that thevictim's use of the website does not, of itself, trigger the protections of the Rape Shield Law,which prohibits evidence of a victim's sexual conduct in a case prosecuted under PenalLaw article 130, with certain exceptions (see CPL 60.42; People v Scott, 16 NY3d 589,593-594 [2011]; People v Contreras,47 AD3d 411, 412 [2008], affd 12 NY3d 268 [2009]; People v Jovanovic,263 AD2d 182, 193-198 [1999], lv granted 94 NY2d 908 [2000], appealdismissed 95 NY2d 846 [2000]). That said, defendant was allowed to cross-examine thevictim as to the fact that she met defendant through the website, knew that the purpose of the sitewas "for finding people to have sex with" and lied about her age by affirming that she was over18 to gain access to the site. Because the victim was a minor, she was incapable of consenting toany sexual interaction with defendant and, thus, any information as to her use of this website wasotherwise irrelevant (see Penal Law § 130.05 [2] [b]; [3] [a]; People v Simmons, 103 AD3d1027, 1029 [2013], lv denied 21 NY3d 1009 [2013]). Additionally, any evidenceabout how the victim's photographs came to be on defendant's phone and computer is irrelevantas to Penal Law § [*7]263.16, which only requiresknowing possession.
With respect to the video recording, defendant maintains that County Court erred inprecluding his testimony that the video was taken while the victim and another man were in themotel room without him, and then instructing the jury to disregard any "comments made aboutanother person in the room . . . and potentially issues of sexual activity" asprecluded by the Rape Shield Law. We agree with County Court that this testimony, in context,speaks to sexual conduct that generally would be precluded. Nor did defendant request anexception under CPL 60.42 (5), which would require an offer of proof demonstrating that theevidence should be "admissible in the interests of justice." Notably, in defendant's ensuingtestimony, he testified that he was not the man shown in the video. Defendant further testifiedthat he had no tattoos and was allowed to demonstrate his scars to the jury so as to differentiatehimself from the man in the video. As such, any error here was rendered harmless.
Nor are we persuaded that defendant's sentence, which is extensive, is unduly harsh andexcessive when we consider his prior conviction for endangering the welfare of a child,the repeated encounters with the victim and his extraordinary attempt to have her killed prior tothe trial. Defendant's contention that the nine counts of rape were rendered duplicitous by theevidence at trial was not preserved because no such objection was made at trial. Defendant didnot request the victim's confidential mental health records, nor is there any indication in therecord that the People were in possession of such records. We are unpersuaded by defendant'scontention in his pro se brief that the record on appeal is inaccurate and/or incomplete. To theextent that defendant also asserts that he received the ineffective assistance of appellate counsel,that issue is not properly before us on direct appeal. We have reviewed defendant's remainingcontentions and find them unavailing.
McCarthy, J.P., Egan Jr. and Pritzker, JJ., concur.
Clark, J. (concurring in part and dissenting in part). I depart from the majority on the issue ofwhether the challenged photographic exhibits were authenticated and, thus, properly admittedinto evidence. In my view, the People failed to elicit sufficient testimony to satisfy the basic andwell-established foundational requirements necessary to properly admit the challengedphotographs into evidence. Because I cannot overlook, as the majority has, the People's repeatedfailure to establish that the photographs were true, accurate and unaltered reproductions of thephotographs actually recovered from defendant's cell phone and computer, I respectfully dissentfrom that aspect of the majority's decision.
Courts have long recognized the important and integral role that the rules of evidence play"in the administration of justice" (Patten v United Life & Acc. Ins. Assn., 133 NY450, 455 [1892]; see e.g. People v Conyers, 52 NY2d 454, 460 [1981]; Terpenning vCorn Exch. Ins. Co., 43 NY 279, 283 [1871]). Among their many functions, the rules ofevidence protect the criminally accused from prejudice (see People v Wolf, 183 NY 464,479 [1906]; People v Mull, 167 NY 247, 253-254 [1901]) and safeguard the overall"integrity of the truth-finding process" (People v Conyers, 52 NY2d at 460; see e.g.Hope v Hearst Consol. Publs., Inc., 294 F2d 681, 690 [2d Cir 1961], cert denied 368US 956 [1962]; see generally United States v Nixon, 418 US 683, 709 [1974]; Funk vUnited States, 290 US 371, 381 [1933]). As made clear from its name, the evidentiaryauthentication requirement seeks to assure the authenticity and, thus, the integrity of evidencepresented to juries (see generally Peoplev Price, 29 NY3d 472, 476-477 [2017]; United [*8]States v Ianniello, 621 F Supp 1455, 1468 [SD NY 1985]). Inparticular, the authentication requirement demands that the party seeking to admit photographicevidence establish that each offered photograph "accurately represent[s] the subject matterdepicted" (People v Byrnes, 33 NY2d 343, 347 [1974]; accord People v Price, 29NY3d at 477; People v Marra, 96AD3d 1623, 1625-1626 [2012], affd 21 NY3d 979 [2013]; see generally People vMcGee, 49 NY2d 48, 59 [1979]). Indeed, " 'the ultimate object of the authenticationrequirement is to insure the accuracy of the photograph sought to be admitted into evidence[.Thus,] any person having the requisite knowledge of the facts may verify,' or an expert maytestify[,] that the photograph has not been altered" (People v Price, 29 NY3d at 477,quoting People v Byrnes, 33 NY2d at 347).
The People's foundational questioning here, generously described by the majority as "brief,"was wholly lacking in substance. Although the People asked appropriate witnesses, including thevictim, to identify the subject matter of the photographs to which they had knowledge, little or noadditional information was elicited. Fatally, the People did not elicit any testimony that couldestablish that any of the photographs fairly and accurately depict the subject matteridentified therein (see People v Price, 29 NY3d at 480; People v Wells, 161 AD3d 1200,1200 [2018]; compare People v Dawkins, 240 AD2d 962, 964 [1997], lv denied90 NY2d 903 [1997]).
Specifically, with respect to the 16 photographic exhibits depicting the victim in variousstages of undress, the People simply asked the victim whether each photograph "look[ed]familiar." Contrary to the assertions of the majority, the victim's general testimony identifyingherself as the person depicted in those photographs was insufficient to properly authenticatethem. Even if the victim's testimony demonstrated that the photographs admitted into evidencewere a fair representation of the photographs that she took or were taken of her, as the majoritycontends, no one testified that the admitted photographs had not been altered or that they weretrue and accurate representations of the photographs actually recovered from defendant's cellphone and computer[FN*](see People v Price, 29 NY3d at 478). There was simply no sworn testimony to refute thepossibility that the photographs had been manipulated.
Although not discussed by the majority in detail, the remaining 10 photographic exhibitsallegedly depict a motel room, different areas in the victim's bedroom and defendant's homecomputers, vehicle and residence. These photographs were offered into evidence to corroboratethe victim's testimony, to provide background information and/or to allow the jury to assesswhether the photographs of the victim were taken in either the motel room or the victim'sbedroom. As with the photographs of the victim, the People did not elicit any testimonywhatsoever to establish that these photographs fairly and accurately represented the subjectmatter depicted therein, as required (see People v Price, 29 NY3d at 477; People vByrnes, 33 NY2d at 347).
Despite the obvious absence of any testimony to satisfy the basic foundational requirementswhen evidence is proffered, County Court consistently overruled defendant's repeated andappropriate protestations and improperly admitted the challenged photographic exhibits intoevidence. By not demanding strict adherence to basic foundational requirements, [*9]County Court abdicated its role as gatekeeper to ensure the integrityof the evidence presented to the jury (seegenerally People v Boone, 30 NY3d 521, 538 [2017, Garcia, J., concurring]; People v Vining, 28 NY3d 686,693 [2017]; People v Johnson, 27NY3d 199, 208 [2016]). At no point did the People elicit any testimony that would satisfythe accuracy requirement for any of the 25 photographic exhibits. Such testimony is crucial,particularly given that photographs are, in this day and age, increasingly more vulnerable tomanipulation, however slight (see generally 2 McCormick on Evidence§ 215 [7th ed 2016]; Jill Witkowski, Note, Can Juries Really Believe WhatThey See? New Foundational Requirements for the Authentication of Digital Images, 10Wash U JL & Pol'y 267 [2002]; Victor E. Bianchini & Harvey Bass, A Paradigmfor the Authentication of Photographic Evidence in the Digital Age, 20 T Jefferson L Rev303 [1998]). In this case, even small—seemingly innocuous—alterations, such asenlargements or zooming, could have impacted whether a photograph formed the basis for thecharge of possessing a sexual performance by a child (see generally People v Horner, 300AD2d 841, 842-843 [2002]). In my view, the admission of the 25 photographic exhibits intoevidence without a proper foundation was clear error.
Without consideration of the erroneously admitted exhibits, I do not find the evidence ofdefendant's guilt to be overwhelming (see generally People v Byer, 21 NY3d 887, 889 [2013]; Peoplev Crimmins, 36 NY2d 230, 241-242 [1975]). The 25 photographic exhibits were essential tothe People's case, for many served as direct evidence of the charges of possessing a sexualperformance by a child, as well as circumstantial evidence establishing the sexual nature ofdefendant's relationship with the victim. Without the erroneously admitted photographs, thecharges of possessing a sexual performance by a child would have fallen, and the overall strengthof the People's case on the remaining charges would have been significantly weakened. ThePeople's foundational and substantive questioning of all of the witnesses was shockinglyminimal, which resulted in a situation in which the challenged photographs played a substantialrole in establishing the People's case. Moreover, I do not find that "there was no significantprobability that the jury would have acquitted [defendant] had the proscribed evidence not beenintroduced" (People v Cummings,31 NY3d 204, 212 [2018]; see People v Byer, 21 NY3d at 889; People vCrimmins, 36 NY2d at 241-242). It is hard to imagine how the photographic exhibits did notimpact the jury's verdict, when many of the exhibits formed the basis for several of the counts inthe indictment, and the sexual nature of many of the challenged exhibits certainly could haveinfluenced the jury's consideration of all of the charges. Accordingly, I find that County Court'serror in admitting over 25 photographic exhibits without proper foundation was not harmless,particularly given the nature and content of many of those photographs. Thus, I would reversedefendant's convictions for rape in the second degree (counts 1, 3, 5, 7, 9, 11, 13, 15 and 17 ofindictment No. 13-017), criminal sexual act in the second degree (count 2 of indictment No.13-017), possessing a sexual performance by a child (count 20 of indictment No. 13-017) andcriminal solicitation in the second degree (count 1 of indictment No. 13-022), and remit thematter for a new trial on those counts (see CPL 470.20 [1]; People v Peters, 157 AD3d 79, 85[2017], lv denied 30 NY3d 1118 [2018]; People v Cordova, 127 AD3d 1227, 1228 [2015]; People vPerkins, 189 AD2d 830, 833 [1993]; People v Moss, 168 AD2d 960, 960 [1990];compare People v Rossi, 80 NY2d 952, 954 [1992], rearg denied 81 NY2d 835[1993]; People v Kevin W., 91AD3d 676, 677-678 [2012], affd 22 NY3d 287 [2013]).
Ordered that the judgment is modified, on the law, by reversing defendant's convictions ofpossessing a sexual performance by a child under counts 21, 22 and 27 of indictment No. 13-017;said counts dismissed and the sentences imposed thereon vacated; and, as so modified,affirmed.
Footnote 1:Two of the original eight countsof possessing a sexual performance by a child were dismissed upon defendant's pretrial motion,and the jury acquitted defendant of two other counts.
Footnote 2:We reject defendant's assertionthat the victim's testimony approximating the number of her encounters with defendantconstituted evidence of prior uncharged crimes (see generally People v Ventimiglia, 52NY2d 350, 359 [1981]).
Footnote 3:With respect to the room rentalslips, defendant failed to preserve the specific evidentiary argument he now raises on appeal (see People v Edwards, 39 AD3d1078, 1080-1081 [2007]; People v Dunn, 204 AD2d 919, 920-921 [1994], lvdenied 84 NY2d 907 [1994]).
Footnote 4:The EZ-Pass records alsocorroborated the victim's testimony that defendant would pick her up in either a black Mercedesor a white truck.
Footnote 5:We are unpersuaded bydefendant's contention that the handwritten notes were not properly authenticated. Thecircumstantial evidence, including the inmate's testimony and the content of the notesthemselves, satisfied the authentication requirement (see People v Jackson, 125 AD3d 1002, 1003 [2015], lvdenied 25 NY3d 1202 [2015]; People v Myers, 87 AD3d 826, 827-828 [2011], lv denied17 NY3d 954 [2011]; People vBryant, 12 AD3d 1077, 1079 [2004], lv denied 4 NY3d 761 [2005]; People vThomas, 272 AD2d 892, 893 [2000], lv denied 95 NY2d 858 [2000]).
Footnote 6:Each of these eight photographswas admitted into evidence in both paper form and as a digital image on a CD, comprising 16exhibits in total. While the photographs involved 25 exhibits, in actuality, there were only 17separate and distinct photographs admitted into evidence.
Footnote *:With respect to People's exhibitNos. 5 and 5a, there was absolutely no testimony whatsoever establishing where the photographwas originally found or the location from which it was extracted, and there is nothing linking thephotograph to defendant.