Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), rendered May 11, 2012. The judgment convicted defendant, after a nonjury trial, of reckless endangerment in the second degree, menacing in the second degree, and criminal possession of a weapon in the fourth degree.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was convicted of reckless endangerment in the second degree (Penal Law § 120.20), menacing in the second degree (Penal Law § 120.14 [1]), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). The accusatory instrument alleged, among other things, that defendant had fired a gun from the window of a vehicle which she had been driving.

At the trial, two of the People's witnesses identified defendant as the driver of a Nissan Altima and stated that they had observed defendant fire a gun from the window of the vehicle. There was also testimony that defendant's sister owned an Altima. No gun was recovered; however, a shell casing was recovered from the Altima two days later. Two of the People's police witnesses testified that the casing appeared to be old and that they could not determine when the shot that had produced the casing had been fired. Although there were street video recordings of the area where the shooting took place, the People never requested copies of the videos, which were subsequently destroyed. Defendant and her witnesses testified that defendant had not driven her sister's car on the day in question, and that defendant had been at her sister's house at a Father's Day dinner when the shooting had taken place.

On appeal, defendant contends, among other things, that the judgment of conviction should be reversed because the City Court failed to sanction the People for failing to preserve the video recordings; that the court erred in admitting into evidence the recordings of the 911 calls, the shell casing and the testimony relating thereto, and her statement to the police regarding a prior incident (People's Exhibit 22); and that the verdict was against the weight of the evidence.

A review of the record indicates that, at defendant's request, the City Court drew an adverse inference regarding the People's failure to secure the street video recordings. Thus, there is no merit to defendant's contention that the court failed to sanction the People with respect thereto. In addition, defendant waived any issue regarding the admission of People's Exhibit 22 into evidence since defense counsel clearly consented to the admission of this exhibit (see e.g. [*2]People v Williams, 98 AD3d 1279, 1280 [2012]). As to defendant's contention that the court improperly allowed the People to use Exhibit 22 to elicit facts to which defendant had not previously testified, we note that this contention is not preserved for appellate review since no objection was made on this ground at trial (see CPL 470.05 [2]).

Moreover, under the circumstances presented, reversal of defendant's conviction is not warranted based on the People's late disclosure of the recordings of the 911 calls since defendant was provided with sufficient time to review the recordings, did not request additional time, and failed to establish that she was prejudiced by the late disclosure (see e.g. People v Rivers, 17 AD3d 934, 937 [2005]). In addition, the People laid a proper foundation for the admission of the recordings into evidence (see People v Ely, 68 NY2d 520, 527 [1986]), as the recordings were admissible under the excited utterance exception to the hearsay rule (see People v Edwards, 47 NY2d 493, 497 [1979]). We note that if an out-of-court statement qualifies for admission under an exception to the rule against hearsay, it may be admitted notwithstanding the fact that "it might also be a prior consistent statement" (People v Buie, 86 NY2d 501, 511 [1995]; People v Clarke, 101 AD3d 897, 898 [2012]). The record further establishes that the shell casing was not improperly admitted into evidence inasmuch as the probative value of this evidence was not outweighed by its prejudicial impact (see People v Mateo, 2 NY3d 383, 424-425 [2004]; People v Scarola, 71 NY2d 769, 777 [1988]).

Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), and 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 Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

Defendant's remaining contentions either lack merit or are unpreserved, and we decline to review them in the interest of justice.

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: December 16, 2013