People v Falletta (Millicent)

[*1] People v Falletta (Millicent) 2010 NY Slip Op 50417(U) [26 Misc 3d 143(A)] Decided on March 9, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2008-336 N CR.

The People of the State of New York, Respondent,

against

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. The judgment convicted defendant, after a nonjury 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 file a report in accordance with this decision 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 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 relating 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 People have not established, however, that the CD duplicates the DVD accurately enough for this court to take the CD into consideration in determining the appeal.

Accordingly, under the circumstances, 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 determine whether there are differences between the DVD and the CD, and to file his report with this court with all convenient speed.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: March 09, 2010