People v Meanwell (Louise)

[*1] People v Meanwell (Louise) 2007 NY Slip Op 51990(U) [17 Misc 3d 131(A)] Decided on October 5, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., EMERSON and LaCAVA, JJ
2006-1125 W CR.

The People of the State of New York, Respondent,

against

Louise Meanwell, Appellant.

Appeal from a judgment of the Justice Court of the Village of Mamaroneck, Westchester County (Roger H. Serlin, J.), rendered June 1, 2006. The judgment convicted defendant, upon a jury verdict, of aggravated harassment in the second degree.

Judgment of conviction reversed on the law and a new trial ordered.

Defendant was charged with aggravated harassment in the second degree (Penal Law § 240.30 [1]) based on a telephone call she allegedly made to the complainant. At trial, the complainant's telephone records, which the complainant obtained from the telephone company's Web site, were admitted into evidence, over objection, to establish that defendant made the alleged telephone call. In addition, the
People introduced evidence of charged and uncharged crimes during direct examination of the complainant without conducting a hearing to determine the admissibility of such evidence. There was also testimony offered by a police officer indicating that the complainant recognized defendant's voice and identified defendant as the caller. Defendant was found guilty of aggravated harassment in the second degree.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), the evidence adduced at trial was legally sufficient to establish defendant's guilt of aggravated harassment in the second degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). [*2]

However, pursuant to CPLR 4518, which is made applicable to criminal proceedings (CPL 60.10), the People were required to lay a proper foundation before the telephone records in question could be admitted into evidence as an exception to the hearsay rule. Since a proper foundation was not established, the telephone records should have been excluded as evidence at trial (see People v Kennedy, 68 NY2d 569 [1986]; People v Rosa, 156 AD2d 733, 734 [1989]). A new trial is warranted because said evidence was admitted to prove that defendant made the telephone call in question, and the error cannot be deemed harmless (id.).

In addition, evidence of charged and uncharged crimes alleged to have been committed by defendant was improperly introduced at trial since the court below did not conduct a hearing and weigh the probative worth of such evidence against its prejudicial effect (see People v Ingram, 71 NY2d 474 [1987]; People v Ventimiglia, 52 NY2d 350 [1981]; People v Molineux, 168 NY 264 [1901]). We note further that the police officer's testimony regarding the complainant's identification of the defendant constituted improper bolstering and should not have been admitted at trial (see People v Eyre, 138 AD2d 397 [1988]; People v Land, 131 AD2d 883 [1987]). Morever, the court must properly balance the probative value of defendant's conviction of harassment in the second degree based on another incident, which conviction was rendered after the telephone call allegedly made in the present case, against any undue prejudice if the People seek to introduce such evidence at a new trial to impeach defendant's credibility (see People v Pavo, 59 NY2d 282, 292 [1983]; People v Sandoval, 34 NY2d 371 [1974]).

We pass upon no other issue raised on appeal.

Rudolph, P.J., Emerson and LaCava, JJ., concur.
Decision Date: October 05, 2007