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The People of the State of New York v. Millicent Falletta

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


May 20, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
MILLICENT FALLETTA,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, First District (Edmund M. Dane, J., at trial; Valerie Alexander, J., at sentencing), rendered January 8, 2008.

People v Falletta (Millicent)

Decided on May 20, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ

The judgment convicted defendant, after a non-jury trial, of harassment in the second degree.

ORDERED that the matter is remitted to the District Court and, pursuant to Judiciary Law § 7-a, the judge before whom the action was tried is directed to conduct a reconstruction hearing and to file a report with all convenient speed; the appeal is held in abeyance in the interim.

The charge against defendant stemmed from an incident that took place at the complainant's home. At the non-jury trial, the prosecution introduced into evidence what the complainant testified was a DVD copy of a digital video camera recording that was made by him and depicted at least portions of the incident. The DVD cannot at this point be located. It is clear from the record that the DVD was a significant component of the trial evidence, and defendant raises issues regarding to its admissibility and content. The People have provided this court with a CD, apparently also made by the complainant, that purports to be a copy of the same original digital recording as was used to create the DVD. The appeal was previously held in abeyance for the District Court to determine whether there are differences between the DVD and the CD. Without conducting a formal hearing, the judge before whom the action was tried filed a report indicating that he could not make such a determination.

Since the original missing trial exhibit has "substantial importance" to the issues raised on appeal and the information is not otherwise available in the record, we find that a reconstruction hearing is required (People v Jackson, 98 NY2d 555, 560 [2002], quoting People v Yavru-Sakuk, 98 NY2d 56, 60 [2002]). Accordingly, we hold the appeal in abeyance, remit the matter to the District Court, and, pursuant to Judiciary Law § 7-a, direct the judge before whom the action was tried to conduct a reconstruction hearing and to file a report with all convenient speed.

Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.

Decision Date: May 20, 2011

20110520

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