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The People of the State of New York, Respondent v. Wendy Gabriel

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 25, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
WENDY GABRIEL, DEFENDANT-APPELLANT.

People v Gabriel

Decided on April 25, 2013

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Acosta, Roman, Feinman, Clark, JJ.

Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered November 20, 2009, as amended December 16, 2009, convicting defendant, after a jury trial, of assault in the second degree, aggravated criminal contempt (two counts) and endangering the welfare of a child (two counts), and sentencing him to an aggregate term of seven years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations, including its evaluation of any inconsistencies in testimony. The fact that the jury acquitted defendant of charges arising from other incidents does not warrant a different conclusion (see People v Rayam, 94 NY2d 557 [2000]).

The court properly exercised its discretion in admitting a recording of a 911 call, which qualified as both an excited utterance and a present sense impression. The tape's probative value outweighed any potential prejudicial effect (see e.g. People v Harris, 99 AD3d 608 [1st Dept 2010]). The People were not required to make a showing of necessity (see People v Buie, 86 NY2d 501, 509 [1995]), and the tape was not inflammatory. To the extent the tape demonstrated the caller's emotional distress, this tended to enhance the tape's reliability as an excited utterance. Finally, any error was harmless, particularly because defendant was acquitted of all charges arising from the incident to which the tape related.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 25, 2013

CLERK

20130425

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