| People v Oquendo |
| 2017 NY Slip Op 05548 [152 AD3d 1220] |
| July 7, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Raheem H.Oquendo, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered June 24,2009. The judgment convicted defendant, upon a jury verdict, of petit larceny and grand larcenyin the fourth degree (four counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofpetit larceny (Penal Law § 155.25) and four counts of grand larceny in the fourthdegree (§ 155.30 [1]). Defendant contends that he was deprived of a fair trial basedon three improper remarks by County Court during jury selection. Defendant failed to preservefor our review his contention with respect to any of the alleged improper remarks (seeCPL 470.05 [2]; People vMcAvoy, 70 AD3d 1467, 1468 [2010], lv denied 14 NY3d 890 [2010]). In anyevent, the remarks do not warrant reversal. Although some of the court's remarks, when isolatedand taken out of context, were arguably improper, we conclude that, when they are viewed intheir proper context, they did not prevent the jury "from arriving at an impartial judgment on themerits" or deprive defendant of a fair trial (People v Moulton, 43 NY2d 944, 946 [1978];see McAvoy, 70 AD3d at 1468).
We reject the further contention of defendant that the court erred in admitting in evidencevideo recordings from the surveillance system of the two stores where defendant allegedlycommitted the larcenies. "[A] video may be authenticated by the testimony of a witness to therecorded events or of an operator or installer or maintainer of the equipment that the videoaccurately represents the subject matter depicted" (People v Patterson, 93 NY2d 80, 84[1999]; see People v Byrnes, 33 NY2d 343, 347-349 [1974]). The videos at issue hereinwere adequately authenticated by the testimony of two store employees who were familiar withthe surveillance system, copied the surveillance videos to the DVDs brought to court, andtestified to the unaltered condition of the videos. The testimony of the employees supports theconclusion that the videos accurately depict the events at issue. Any gaps in the chain of custodywent to the weight of the evidence, not its admissibility (see People v Hawkins, 11 NY3d 484, 494 [2008]).
Defendant further contends that the court erred in permitting one of the store employees toidentify him as the individual depicted in two of the surveillance videos. We agree withdefendant that the court erred in permitting such opinion testimony inasmuch as there was aninsufficient basis for concluding that the employee was more likely to identify defendantcorrectly from the videos than was the jury (see People v Myrick, 135 AD3d 1069, 1074 [2016]; People v Coleman, 78 AD3d 457,458 [2010], lv denied 16 NY3d 829 [2011]). Nevertheless, we conclude that the error isharmless. The evidence of defendant's guilt is overwhelming and, taking into account the court'slimiting instruction to the jury with respect to the testimony, we conclude that there is nosignificant probability that defendant would have been acquitted but for the error (see Peoplev Crimmins, 36 NY2d 230, 241-242 [1975]; Coleman, 78 AD3d at 458-459). Wereject defendant's contention that the court also erred in permitting the employee to testify to theidentity of the stolen items and their value. In addition to viewing the surveillance videos, theemployee testified he was able to determine the identity and value of the stolen items bysubsequently inspecting the prices posted in the stores (see generally People v Irrizari, 5NY2d 142, 145-147 [1959]; People vTrilli, 27 AD3d 349, 349-350 [2006], lv denied 6 NY3d 899 [2006]; Peoplev Wandell, 285 AD2d 736, 737 [2001]).
Contrary to defendant's further contention, the court did not abuse its discretion in denyinghis request for an adjournment based on the People's late disclosure of certain surveillancevideos, nor did that late disclosure warrant reversal, inasmuch as "[d]efendant failed to establish. . . that he was surprised or prejudiced by the late disclosure" (People v Collins, 106 AD3d 1544,1546 [2013], lv denied 21 NY3d 1072 [2013]; see People v Resto, 147 AD3d 1331, 1332 [2017], lv denied29 NY3d 1000 [2017]; People vRogers, 103 AD3d 1150, 1151-1152 [2013], lv denied 21 NY3d 946 [2013]; People v Jacobson, 60 AD3d 1326,1328 [2009], lv denied 12 NY3d 916 [2009]). Finally, the sentence is not unduly harsh orsevere. Present—Carni, J.P., Curran, Troutman, Winslow and Scudder, JJ.