| People v Costello |
| 2015 NY Slip Op 04141 [128 AD3d 848] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Mario Costello, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant,and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Laura T. Ross, and Christine DiSalvo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered May 30, 2012, convicting him of burglary in the second degree andpetit larceny, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant did not waive his challenge to theadmission of a video recording purportedly showing him attempting to exit an apartmentbuilding where he had just committed a burglary, and the issue is preserved for appellatereview (see CPL 470.05 [2]).
The defendant contends that the Supreme Court improperly admitted into evidencethe video recording from the building's security camera because it was not sufficientlyauthenticated and exhibited a date other than the date of the burglary. This contention iswithout merit. The video recording was sufficiently authenticated with the testimony of apart-time superintendent who maintained the building and was familiar with theoperation of the building's video recording surveillance system, as well as the testimonyof a detective who obtained a copy of the video recording and vouchered it (seePeople v Patterson, 93 NY2d 80, 84 [1999]). Further, under the circumstancespresented, the discrepancy between the date of the burglary and the date stamped on thevideo recording went to the weight of the evidence, not its admissibility (see People vMcGee, 49 NY2d 48, 60 [1979]). Accordingly, the Supreme Court did notimprovidently exercise its discretion in admitting the video recording.
The defendant's contention, raised in point I of his pro se supplemental brief, that theevidence was legally insufficient to support his convictions, is only partially preservedfor appellate review (see CPL 470.05 [2]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon exercising our independent review pursuant to CPL470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the[*2]evidence (see People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d633 [2006]).
The defendant's contention, raised for the first time on appeal in point II of his pro sesupplemental brief, is based on matter dehors the record, and cannot be reviewed on thisdirect appeal from the judgment (see People v Sampson, 67 AD3d 1031, 1033 [2009]; People v Jackson, 41 AD3d498, 500 [2007]). Rivera, J.P., Dickerson, Cohen and Barros, JJ., concur.