| People v Failing |
| 2015 NY Slip Op 05369 [129 AD3d 1677] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBeth A. Failing, Also Known as Beth A. Spallina, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Harris Beach PLLC, Pittsford(Kelly S. Foss of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Thomas R. Morse, A.J.),rendered April 20, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal mischief in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a juryverdict of criminal mischief in the third degree (Penal Law § 145.05),arising from an incident in which defendant intentionally scratched the vehicle of herformer paramour. Defendant contends that the People failed to establish that thereplacement cost of the vehicle or its damaged side panels exceeded $250 and thus thatthe evidence is legally insufficient to support the conviction. We reject that contention." '[I]t is sufficient to define value in terms of the cost of repair of the property, solong as the property is repairable' " (People v Woodard, 148 AD2d 997,998 [1989], lv denied 74 NY2d 749 [1989]; see People v Brown, 177AD2d 942, 942 [1991], lv denied 79 NY2d 944 [1992]). The People presentedthe testimony of a witness certified by the State of New York to provide estimates fordamage to vehicles, who estimated that, based on his 20 years of experience in autorepair work, the cost of repairing the vehicle was $1,145.75. Moreover, viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's further contention that County Court abused its discretion inadmitting testimony regarding her consumption of alcohol. The victim testified that heobserved defendant on the night in question and based upon his familiarity with her, sheappeared to have been drinking but did not appear to be intoxicated, and he did not haveconcerns about her driving that night. Contrary to defendant's contention, that testimonydid not implicate her in the commission of an uncharged crime, i.e., driving whileintoxicated (see People vCoppeta, 125 AD3d 1304, 1304 [2015]) and, in view of her defense that shewas not at the victim's house on the night in question, it was relevant to the issues in thecase. "The trial court is granted broad discretion in making evidentiary rulings inconnection with the preclusion or admission of testimony and such rulings should not bedisturbed absent an abuse of discretion[,]" and we discern no abuse of discretion here(People v Almonor, 93 NY2d 571, 583 [1999]).
Defendant contends for the first time on appeal that the court erred in allowing thehearsay testimony of the victim concerning what the neighbor told him about defendantbecause it improperly bolstered the neighbor's testimony. Defendant objected to thattestimony on a ground different from that now asserted on appeal, and she thus failed topreserve her contention for our review (see People v Smith, 24 AD3d 1253, 1253 [2005], lvdenied 6 NY3d 818 [2006]). In any event, defendant's contention lacks merit becausethe victim's testimony was not admitted for its truth [*2]but, rather, it was properly admitted to complete thenarrative by explaining when and why the victim called the police (see People v Cullen, 110 AD3d1474, 1475 [2013], affd 24 NY3d 1014 [2014]). Present—Smith, J.P.,Peradotto, Carni, Valentino and Whalen, JJ.