Supreme Court, Appellate Term, Second Department, June 29, 2009

APPEARANCES OF COUNSEL

Legal Aid Society, Hempstead (Kent V. Moston, Jeremy L. Goldberg and Tammy Feman of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola (Douglas Noll and Lauren Del Giorno of counsel), for respondent.

Memorandum.

Judgment of conviction affirmed.

Defendant, a live-in home health aide, was charged with endangering the welfare of an incompetent or physically disabled person (Penal Law § 260.25). The alleged victim was defendant's client, an elderly woman with physical and communicative impairments, and defendant was charged with pulling{**24 Misc 3d at 84} her, thus causing her to fall, and with slapping her. Following a jury trial, defendant was convicted of the offense charged.

Contrary to what defendant contends, the information was facially sufficient (see CPL 100.40 [1]). With respect to defendant's particular argument that the information did not provide allegations establishing, if true, that the victim was "incompetent" within the meaning of EPTL 1-2.9, we reject this argument. Penal Law § 260.25 incorporates its own definition of an "incompetent or physically disabled person," which is that the person be "unable to care for himself or herself because of physical disability, mental disease or defect," and the factual allegations of the information here, if true, established that the victim fell within this definition (see People v Biamonte, 19 Misc 3d 139[A], 2008 NY Slip Op 50896[U] [App Term, 9th and 10th Jud Dists 2008]).

We also disagree with defendant's assertion that the trial court erred in rejecting a defense challenge for cause to a prospective juror (see generally People v Chambers, 97 NY2d 417 [2002]; People v Rivera, 33 AD3d 303 [2006], affd 9 NY3d 904 [2007]; cf. People v Nicholas, 286 AD2d 861 [2001], affd 98 NY2d 749 [2002]). The prospective juror indicated that she would "be able to sit as a fair and impartial juror in the case," and nothing else that she said [*2]undercut this. Indeed, in the course of discussing her prior geriatric experience, she said, "I would understand two sides to everything." Although the juror acknowledged that she would be "bringing in" her prior experience, the Court of Appeals has observed that "[w]hile the goal is utter impartiality, each juror inevitably brings to the jury room a lifetime of experience that will necessarily inform her assessment of the witnesses and the evidence" (People v Arnold, 96 NY2d 358, 362 [2001]).

The People's case rested on a surveillance tape made by the family of the victim. The victim died prior to trial. Defendant takes the position that the trial court erred in admitting the videotape into evidence, over her objection, because a sufficient foundation for admission was lacking. We do not agree. In our view, the testimony of the prosecution witnesses as to the placement and testing of the surveillance camera and the chain of custody of the videotape provided "reasonable assurances" (People v Hawkins, 11 NY3d 484, 494 [2008]) that the camera recorded reliably and that the videotape accurately depicted the events that it purported to depict; hence, to the extent that it can be argued that there was a gap in the chain of{**24 Misc 3d at 85} custody, it went to the weight of the evidence and not to its admissibility (see id.; People v McGee, 49 NY2d 48, 58-60 [1979]; People v Leach, 203 AD2d 483 [1994]; cf. People v Ely, 68 NY2d 520 [1986]). Consequently, the trial court did not improvidently exercise its discretion in finding the foundation adequate. We also reject defendant's argument that the quality of the videotape was so poor that the court improvidently exercised its discretion in admitting it (see generally People v Orlando, 61 AD3d 1001, 1002 [2009]).

The court similarly did not improvidently exercise its discretion in admitting into evidence photographs depicting injuries to the victim, because the testimony of the victim's doctor established that the photographs fairly and accurately depicted the victim's condition at the time she was seen by him (see generally People v Nevado, 22 AD3d 383 [2005]). To the extent that defendant is now arguing that the photographs were improperly admitted because their potential for prejudice outweighed their probative value, this argument is not preserved for appellate review, and we decline to reach it in the interest of justice.

Defendant also contends that the trial court's response to a juror inquiry was a "mode of proceedings" error not requiring preservation, and warranting reversal. In our view, there was neither a "mode of proceedings" error nor a preserved claim of error in light of the facts that the court ultimately provided defense counsel with a timely and meaningful opportunity to participate in formulating a response to the inquiry, and that defense counsel did not avail himself of the opportunity (see People v Starling, 85 NY2d 509, 516 [1995]; see also People v Williams, 38 AD3d 429, 431 [2007]; cf. People v Cassell, 62 AD3d 1021 [2d Dept 2009]). Again, we decline to exercise our interest of justice jurisdiction to reach the issue.

Viewed in the light most favorable to the People (see People v Danielson, 9 NY3d 342 [2007]), the evidence was legally sufficient to establish defendant's guilt. Moreover, the verdict was not, in our opinion, against the weight of the evidence (see Danielson, 9 NY3d 342 [2007]).

Rudolph, P.J. (dissenting and voting to reverse the judgment of conviction and dismiss the accusatory instrument in the following memorandum). I agree with defendant that the District Court abused, or, at the very least, improvidently exercised, its discretion in admitting the videotape (see People v Patterson, 93 NY2d 80, 84 [1999]). The People relied to a large extent on{**24 Misc 3d at 86} chain-of-custody testimony to lay the foundation for admission of the tape (see People v Ely, 68 NY2d 520, 527-528 [1986]; People v Orlando, 61 AD3d 1001 [2009]). According to the prosecution testimony, one of the victim's daughters made the videotape and then turned it over, apparently without viewing it, to the victim's second daughter. The prosecution testimony further established that the second daughter did not view the tape until two to three days later. After viewing it, she turned it over to the police. The second daughter testified that the tape did not appear damaged at that point. Neither the second daughter nor any other witness testified as to where the videotape was kept during the two-to-three-day period between the second daughter's receipt of the tape and her viewing of it, or who had access to it during this period, or whether it remained in the second daughter's custody the entire time. Because of this gap in the chain of custody, the evidence did not establish that the videotape was not altered (see People v Connelly, 35 NY2d 171, 175 [1974] ["the fact that the item was or might have been accessible to other persons not called as witnesses casts suspicion on the integrity of the evidence"]; see also Ely, 68 NY2d at 528 [gap in chain of custody of audiotapes left open possibility of alteration]; DiNardo v Koronowski, 252 AD2d 69, 70 [1998] ["(t)he Court (of Appeals) recognized (in DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 190 [1992]) that surveillance tapes could be easily altered"]). Hence, in my view, the tape should not have been admitted into evidence (see Ely, 68 NY2d at 522 ["(t)he predicate for admission of (audio)tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered"]).

There are, to be sure, cases in which gaps in the chain of custody have been held to go only to the weight of the evidence, and not to admissibility (see e.g. People v Hawkins, 11 NY3d 484, 494 [2008]; People v Ketteles, 62 AD3d 902, 904 [2009]; People v Alomar, 55 AD3d 617, 617-618 [2008]). The Court of Appeals gave the following qualification in Hawkins, however: "Gaps in the chain of custody may be excused when circumstances provide reasonable assurances of the identity and unchanged condition of the evidence" (Hawkins, 11 NY3d at 494 [citation omitted; emphasis added]; see Ely, 68 NY2d at 528 ["(w)ere there other foundation proof to overcome (the possibility that audiotapes had been altered), the gap in the chain of custody would affect the weight but not the admissibility of the tapes" (citation omitted)]).

Here, were there such "reasonable assurances" of non-alteration during the two-to-three-day period in question, I{**24 Misc 3d at 87} would agree with the majority that the gap in the chain of custody went only to the weight of the evidence. For example, if the prosecution had provided (credible) expert testimony to the effect that the videotape had not been altered or that any alteration would have caused visible damage, I would find that the gap went only to the weight of the evidence (see Hawkins, 11 NY3d at 488-489, 494; Ely, 68 NY2d 527). If a witness had (credibly) testified that she had viewed the tape before the gap, and that what it depicted at that time was the same as what it depicted after the gap, I would find that the gap went only to the weight of the evidence (see generally Alomar, 55 AD3d at 618). Had the sister who received the tape and then turned it over to the police (credibly) testified that she had safeguarded the tape in a manner that provided reasonable, albeit not perfect, assurances that third parties did not have access to it, I would find that the deficiency went only to the weight of the evidence (see Ketteles, 62 AD3d at [*3]904). Had the testimony established that the gap in time was minimal, that circumstances had minimized the possibility that tampering had taken place, and that there was an indication of non-tampering, I would find that the gap went only to the weight of the evidence (see Hawkins, 11 NY3d at 488-489, 494). The lack of evidence as to the specific whereabouts of the tape during the period in question here was, however, fatal to admissibility (see Ely, 68 NY2d at 528-529).

Since it was not shown that the videotape was reliable enough to warrant its admission into evidence, and since the verdict rested on the videotape, dismissal is warranted on the ground that the verdict was against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]; People v Mateo, 2 NY3d 383 [2004]; cf. People v Schweininger, 25 AD2d 769 [1966], affd 19 NY2d 872 [1967]). In view of the foregoing, I would reach no other issues.

Tanenbaum and Nicolai, JJ., concur; Rudolph, P.J., dissents in a separate memorandum.