| People v Franzese |
| 2017 NY Slip Op 06959 [154 AD3d 706] |
| October 4, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward Franzese, Appellant. |
Paul Skip Laisure, New York, NY (Anders Nelson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz,J.), rendered July 8, 2015, convicting him of attempted assault in the second degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that a YouTube video that was admitted into evidence was notproperly authenticated is only partially preserved for appellate review (see CPL 470.05[2]). In any event, the contention is without merit. "[A]uthenticity is established by proof that theoffered evidence is genuine and that there has been no tampering with it," and "[t]he foundationnecessary to establish these elements may differ according to the nature of the evidence sought tobe admitted" (People v McGee, 49 NY2d 48, 59 [1979]; see People v Price, 29 NY3d 472,476 [2017]). Here, the YouTube video was properly authenticated by a YouTube certification,which indicated when the video was posted online, by a police officer who viewed the video at orabout the time that it was posted online, and by the defendant's own admissions about the videomade in a phone call while he was housed at Rikers Island Detention Center (see Zegarelli v Hughes, 3 NY3d64, 69 [2004]; People v Hill,110 AD3d 410 [2013]; People vClevenstine, 68 AD3d 1448 [2009]). The video was further authenticated by itsappearance, contents, substance, internal patterns, and other distinctive characteristics(see Fed Rules Evid rule 901 [b] [4]). The quantum of authenticating evidence is greaterhere than what the Court of Appeals found to be inadequate in People v Price (29 NY3dat 472).
Contrary to the defendant's contention, the Supreme Court properly admitted the YouTubevideo, which showed the defendant making gang signs and taunting and threatening a rival gangmember, as it was probative of motive, and the probative value of the evidence outweighed therisk of prejudice to the defendant (see People v Molineux, 168 NY 264, 293 [1901]; People v Bailey, 148 AD3d 547[2017], lv granted 29 NY3d 1075 [2017]; People v Giuca, 58 AD3d 750 [2009]; People v Washington, 28 AD3d335 [2006]; People v Elder, 12AD3d 379 [2004]; People v Edwards, 295 AD2d 270 [2002]). Moreover, the court'slimiting instruction to the jury served to alleviate any prejudice resulting from the admission ofthe evidence (see People v Beer,146 AD3d 895 [2017]; People vHolden, 82 AD3d 1007 [2011]).
The Supreme Court properly permitted a police officer to testify that, in her opinion, [*2]the defendant was the person depicted in a surveillance video. Theofficer testified, inter alia, that she knew the defendant from her patrols of the neighborhood andfrom interacting with him on several occasions. Thus, under the circumstances of this case, hertestimony served to aid the jury in making an independent evaluation of the videotape evidence(see People v Russell, 79 NY2d 1024 [1992]; People v Walker, 78 AD3d 1082, 1084 [2010]; People v Ruiz, 7 AD3d 737, 738[2004]). Moreover, the defendant's contention that the court erred in failing to give a limitinginstruction during the officer's testimony or during the charge to the jury is unpreserved forappellate review (see CPL 470.05 [2]), as he failed to request such an instruction. In anyevent, the contention is without merit. The court's charge to the jury was comprehensive andincluded instructions on the presumption of innocence, the prosecutor's burden of proving everyelement of the crimes charged beyond a reasonable doubt, and the factors relevant to anevaluation of the credibility of the witnesses (see People v McDonald, 287 AD2d 655[2001]; People v Rivera, 259 AD2d 637 [1999]; People v Love, 244 AD2d 431[1997]; People v Syshawn, 200 AD2d 778 [1994]; People v Fana, 142 AD2d 684[1988]; People v Richardson, 109 AD2d 853 [1985]). Mastro, J.P., Dillon, Cohen andBrathwaite Nelson, JJ., concur.