PEOPLE v. LEWIS (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65 [4]), two counts of predatory sexual assault against a child (§ 130.96), and three counts of endangering the welfare of a child (§ 260.10 [1]). Defendant failed to preserve for our review his contention that County Court erred in admitting in evidence a videotape of his confession to a police officer because the recording was so inaudible and unintelligible that the prejudicial effect of its use outweighed the probative value (see People v. Highsmith, 254 A.D.2d 768, 769-770, 679 N.Y.S.2d 758 [4th Dept. 1998], lv denied 92 N.Y.2d 983, 1033, 683 N.Y.S.2d 764, 706 N.E.2d 752 [1998]). In any event, that contention is without merit. The determination whether to permit the admission of a recording in evidence lies in the sound discretion of the trial court (see People v. Dalton, 164 A.D.3d 1645, 1645, 84 N.Y.S.3d 295 [4th Dept. 2018], lv denied 32 N.Y.3d 1170, 97 N.Y.S.3d 624, 121 N.E.3d 252 [2019]), and there is “no abuse of discretion in admitting in evidence recordings having parts that are less than clear” where, as here, “they are not so inaudible and indistinct that the jury would have to speculate concerning [their] contents and would not learn anything relevant from them” (id. [internal quotation marks omitted]; see People v. Jackson, 94 A.D.3d 1559, 1561, 943 N.Y.S.2d 365 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012]).

Defendant contends that he was deprived of a fair trial based on several instances of prosecutorial misconduct. Defendant's contention is preserved for our review only in part (see CPL 470.05 [2]) and is, in any event, without merit. With respect to defendant's argument that the prosecutor failed to disclose Brady material, we conclude that the material in question—evidence that the victims visited the residence of a registered sex offender while supervised by their mother and evidence from the report of the nurse's examination of the victims—was either not relevant or not exculpatory (see People v. Ulett, 33 N.Y.3d 512, 515, 105 N.Y.S.3d 371, 129 N.E.3d 909 [2019]; People v. Boykins, 160 A.D.3d 1348, 1349, 76 N.Y.S.3d 280 [4th Dept 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018]). While defendant preserved his challenge to two inflammatory statements made by the prosecutor during summation (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006]; People v. White, 70 A.D.3d 1316, 1317, 894 N.Y.S.2d 705 [4th Dept. 2010], lv denied 14 N.Y.3d 845, 901 N.Y.S.2d 152, 927 N.E.2d 573 [2010]), we conclude that the comments were not so egregious as to deprive defendant of a fair trial (see People v. Garner, 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017]).

Defendant's sentence is not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.