Appeal from a judgment of the Justice Court of the Town of Pelham, Westchester County (Stephen Huff, J., at trial; John De Chario, J., at sentence), rendered July 19, 2012. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the second degree.

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

Following a jury trial, defendant was convicted of criminal trespass in the second degree (Penal Law § 140.15 [1]).

Prior to the start of the trial, defendant asked the Justice Court to redact certain audio portions of a video which the People intended to introduce at trial. In support of the application, defense counsel highlighted the portion of the video showing defendant exiting from the complainant's house, which included audio of statements made by defendant and the complainant alluding to defendant's prior arrest, which statements, defendant argued, were prejudicial, as well as statements made by the complainant's husband, who had died prior to trial, which, defendant asserted, violated defendant's Sixth Amendment right to confront witnesses. The application was denied. At trial, the video was admitted into evidence and the People presented three witnesses, including the complainant, who testified, among other things, that they had observed defendant inside of the complainant's dwelling on the date in question, and that defendant had no permission or authority to enter or remain in the dwelling.

On appeal, defendant contends that she was denied a fair trial because, among other things, the Justice Court failed to redact the relevant audio portions of the video and instructed the jury that it should presume that the witnesses had testified truthfully ^[FN1].
The video in question (People's Exhibit 4) depicts defendant exiting the complainant's house and contains the voice of the complainant stating that, "Now there are charges against you once again." Defendant is shown stating, "Let the police come and arrest me. Let's do it all over again," and repeatedly stated, "Let's do it all over again." In addition, the complainant's husband can be heard, not seen, making angry comments. Although the contents of the video may show res gestae, the prejudicial impact of the audio portion of the video outweighed any probative value. Thus, the audio should have been redacted (see e.g. People v Ely, 68 NY2d 520 [1986]). In view of the foregoing, as well as the cumulative effect of the other errors committed by the Justice Court during trial, we find that defendant was deprived of a fair trial.

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

Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: January 31, 2014