History of the Case

Thomas J. DiSalvo, J. The defendant was convicted after a jury trial of Common Law

Driving While Intoxicated in violation of VTL Section 1192(3) and Moved From Lane Unsafely

in violation of VTL Section 1128(A).Prior to sentencing, defense counsel filed a motion to

set aside said jury verdict pursuant to CPL 330.30, presumably under subsection (1) thereof

which permits the court set aside the verdict of the jury on "Any ground appearing in the record

which, if raised upon an appeal from a prospective judgment of conviction, would require a

reversal or modification of the judgment as a matter of law by an appellate court."^[FN1]

The People called as a witness Karen Lauler, who was the individual who called the

911 Center at about 3:17 A.M. on January 27, 2012 to report seeing a vehicle drive off the road

in front of her home, knock over her mail box and end up on her neighbor's property. Defense [*2]

counsel then cross-examined the said witness regarding what she saw and what she said on the

911 recording. On re-direct the assistant district attorney played the 911 recording to the jury, after having the disk containing the 911 recording in question marked as People's Exhibit 11.

Upon the completion of the People's case the defense then demanded that the 911 recording be

entered into evidence. The People refused to offer said recording into evidence. The court

granted a trial order of dismissal as to the charge of refusal to take the breath test, VTL

1194(1)(b), but denied said motion regarding the remaining charges. The court denied defense

counsel's motion for a continuance to obtain a witness to establish a foundation necessary to enter

the 911 recording into evidence on behalf of the defendant. The Court then denied defense

counsel's motion for a mistrial, because the People did not offer the 911 recording as evidence,

despite having played the recording to the jury. The defendant then rested without presenting any

evidence or witness testimony. During their deliberations the jury requested that it be able to

review all the pictures entered into evidence. Despite representations to the contrary by defense

counsel, the jury did not make a request to re-hear the 911 recording. The jury subsequently

rendered the aforementioned guilty verdicts.

Issue Presented.

Was the fact that the 911 recording was not entered into evidence a basis for reversal or

modification of the jury's verdict?

Legal Analysis.

The defendant's motion pursuant CPL 330.30 (1) requires the court to review the trial

through the eyes of an appellate court. An appellate court would not affirm a trial court that

"... engage[d] in independent fact finding to set aside a verdict as against the weight of evidence [*3]

...." (People v. Faust, 178 AD2d 352, 577 N.Y.S.2d 403, 404 [1st Dept 1991]). In this case

the 911 recording, although being somewhat inaudible, was not overall favorable to the

defendant.The 911 recording was played from a disk on the prosecutor's laptop. Although one

could easily hear and understand what was said by Ms. Lauler, it was difficult to hear and

understand what was being said by the 911 operator. "A recording must be excluded from

evidence if it is so inaudible and indistinct that a jury must speculate as to its contents (see

People v. Carrasco, 125 AD2d 695, 696)." [People v. Morgan, 175 AD2d 930, 931, 573

N.Y.S.2d 765, 767 (2nd Dept. 1991)]. It cannot be said that the 911 recording was inconsistent

with the testimony of Ms. Lauler or the arresting officer, Shaun Welch. Thus in that regard the

jury's verdict was quite consistent with the evidence presented by the People.

In any event, "the determination of whether to admit a tape recording is left to the

discretion of the trial judge (see People v. Lubow, 29 NY2d 58, 68; People v. Warner, 126

AD2d 788 lv denied 69 NY2d 887). (People v. Gandy, 152 AD2d 909, 543 N.Y.S.2d 817 [4th

Dept. 1989]).See also People v. Morgan at 766 wherein the court stated "Whether a tape

recording should be admitted into evidence is within the discretion of the trial court. The

determination is to be made after weighing the probative value of the evidence against the

potential for prejudice (People v. Ryan, 121 AD2d 34, 65, cert denied 481 U.S. 1058, opinion

vacated on other grounds 134 AD2d 300)."However, the People did not offer the 911 recording

into evidence. In essence the defendant argues that the court should have exercised its discretion

to admit the recording on the sole basis that it was played for the jury during the People's redirect

examination of Ms. Lauler. It would be an abuse of discretion for a trial court to admit an exhibit [*4]

not offered as evidence by the party who simply referred to or marked for identification an

exhibit. It should also be noted that defense counsel did not object to the playing of the 911

recording to the jury as being prejudicial. Instead he maintained that the failure to admit the

recording was prejudicial to the defendant.

The testimony of the eye witness, Karen Lauler, and the testimony of the arresting officer,

Shaun Welch, when taken together, presented the jury with overwhelming evidence of the

defendant's guilt.Since the 911 recording was, as previously stated, not favorable to the

defendant, despite some inaudibility, the defense cannot be heard to complain that the People did

not offer it into evidence. In any event, in deciding a motion based on CPL 330.30 (1) the court

must review the evidence in a light most favorable to the People, give due deference to the jury's

findings of credibility in determining if the jury's guilty verdict was proved beyond a reasonable

doubt by legally sufficient evidence, and that the verdict was not against the weight of that

evidence. (See People v Faust, 178 AD2d 352, 577 N.Y.S.2d 403, 404 [1st Dept. 1991]) As

stated by the court in Faust"The various contentions raised by the defendant ... essentially are

matters of credibility, as to which we find no basis to disturb the jury's verdict." (Faust at 352).

Conclusion.

The motion of the defendant to set aside the jury's verdict, finding the defendant guilty of

common law driving while intoxicated in violation of VTL Section 1192(3) and moved from lane

unsafely in violation of VTL Section 1128(A), is hereby denied. This constitutes the decision

and order of this court.

Dated: May 16, 2013

Webster, New York [*5]

_____S/ Thomas J. DiSalvo _____________

Hon. Thomas J. DiSalvo

Webster Town Justice