People v. Sherwood

• Decision Date: 24 December 2019
• Docket Number: Ind. No. 1115/13,2014-11268
• Citation: 112 N.Y.S.3d 555 (Mem),178 A.D.3d 1093
• Parties: The PEOPLE, etc., Respondent, v. Kenton SHERWOOD, Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1093

112 N.Y.S.3d 555 (Mem)

The PEOPLE, etc., Respondent,

v.Kenton SHERWOOD, Appellant.

2014-11268

Ind. No. 1115/13

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 24, 2019

December 24, 2019

Scott G. Cerbin, Esq., PLLC, Brooklyn, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Hilda Mortensen and Amanda Manning of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Helene F. Gugerty, J.), rendered November 17, 2014, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of assault in the second degree arising out of an altercation between him and his wife on February 17, 2013. At trial, the People introduced into evidence video footage taken from an eyewitness's cell phone allegedly depicting the defendant during the incident.

Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in admitting the video footage, as the People presented sufficient evidence that the video footage accurately represented the events depicted (see People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 ; People v. Martinez, 164 A.D.3d 1260, 1262–1263, 83 N.Y.S.3d 677 ; People v. France, 120 A.D.3d 1357, 1357, 992 N.Y.S.2d 339 ). The defendant's contention that certain testimony of a police officer regarding the video footage constituted impermissible hearsay is unpreserved for appellate review (see CPL 470.05[2] ; People v. Dorcinvil, 122 A.D.3d 874, 876, 996 N.Y.S.2d 661 ; People v. Velsor, 73 A.D.3d 819, 820, 899 N.Y.S.2d 663 ). In any event, the challenged testimony was properly admitted for the relevant, nonhearsay purpose of establishing the reasons behind the police officer's actions and to complete the narrative of events leading to the defendant's arrest (see People v. Nabi, 165 A.D.3d 1292, 1294, 87 N.Y.S.3d 76 ; People v. Ragsdale, 68 A.D.3d 897, 897–898, 889 N.Y.S.2d 681 ).

The defendant also contends that certain remarks made by the prosecutor during trial regarding the video footage violated the unsworn witness rule and that the playing of the video footage during the examination of several of the People's witnesses usurped the jury's role as fact-finder. These contentions are largely unpreserved for appellate review and, in event, are...