PEOPLE v. MONEKE (2020)

ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new trial.

Insofar as is relevant to this appeal, defendant was charged in a simplified traffic information with reckless driving (Vehicle and Traffic Law § 1212) on the Southern State Parkway on August 20, 2017. The People filed a supporting deposition (see CPL 100.25). The District Court, after a hearing, denied defendant's pretrial motion to suppress his statement. After a nonjury trial, the District Court convicted defendant of reckless driving and imposed sentence.

While defendant argues that the accusatory instrument was jurisdictionally defective based on alleged misstatements in the supporting deposition (see CPL 100.25), defendant's specific claim was waived by his failure to move in the District Court to dismiss the accusatory instrument on this ground (see People v. Beattie, 80 NY2d 840 [1992]; People v. Key, 45 NY2d 111, 116-117 [1978]; People v. Patrizio, 62 Misc 3d 132[A], 2018 NY Slip Op 51901[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v. Kelleher, 39 Misc 3d 149[A], 2013 NY Slip Op 50948[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ). As the record demonstrates that the simplified traffic information substantially conformed to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25, 100.40 [2]; People v. Key, 45 NY2d at 115), it was sufficient on its face and, thus, the accusatory instrument was not jurisdictionally defective (see People v. Key, 45 NY2d 111).

Contrary to defendant's argument that the evidence of guilt was legally insufficient to support the verdict, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v. Lane, 7 NY3d 888, 890 [2006]; People v. Mateo, 2 NY3d 383, 410 [2004]; People v. Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdict was not against the weight of the evidence (see People v. Romero, 7 NY3d 633 [2006]).

Defendant's argument that his conviction should be reversed on the ground that the evidence at trial varied from the People's theory as presented in the accusatory instrument is unpreserved for appellate review (see CPL 470.05 [2]; People v. Cortland, 66 Misc 3d 141[A], 2020 NY Slip Op 50150[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020] ). In any event, defendant's contention is without merit (see People v. Cortland, 66 Misc 3d 141[A], 2020 NY Slip Op 50150[U]).

However, we agree with defendant's contention that the Instagram video, which purportedly depicts the offense, should not have been admitted into evidence. The People failed to establish that the video was a fair and accurate depiction of the offense or that the video had not been altered. In addition, among other things, there was no proof as to when the video was recorded. Consequently, the court's admission of the video into evidence constituted error as a matter of law (see People v. Price, 29 NY3d 472 [2017]; People v. Davidson, 178 AD3d 536 [2019]; cf. People v. Franzese, 154 AD3d 706 [2017), requiring a new trial.

Defendant's remaining contention is without merit (see Matter of Kwok T., 43 NY2d 213, 219 [1977]; People v. Yukl, 25 NY2d 585 [1969]; People v. Rodney P. [Anonymous], 21 NY2d 1 [1967]; see also People v. Centano, 76 NY2d 837, 838 [1990]; People v. Cooper, 38 AD3d 678, 679 [2007]).

Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court for a new trial.

ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.