Decision & OrderOn May 4, 2018, a jury returned a verdict convicting the defendant of Penal Law §110/120/00(1) Attempted Assault in the Third Degree, Penal Law §260.10(1) Endangering the Welfare of a Child, and Penal Law §240.26(1) Harassment in the Second Degree. The defendant now moves to set aside the verdict pursuant to CPL §330.30, on the grounds that the text messages allegedly received from defendant were admitted without proper authentication and that the Court improperly assisted the prosecution in laying the foundation for the text message.In this case the defendant was accused of attempting to assault his wife, while his baby daughter was present. Prior to the commencement of the trial, the People made a Motion in Limine to introduce several text messages allegedly made between the defendant and the complaining witness. After lengthy oral argument, the Court permitted only one text message with the proviso that the people properly lay a foundation and authenticate the texts, finding that it was a party admission. All the other text messages were precluded by the Court, finding that they were self-serving, prone to speculation, and the defendant did not make any admissions of guilt on the texts.In determining the instant motion, this Court has considered the Defendant’s moving papers dated June 13, 2018, the People’s response dated July 5, 2018, and papers on file with the Court. For the following reasons, the defendant’s motion is denied in all respects.CPL §330.30 allows the court, upon application by the defendant before sentencing, to set aside or modify a guilty verdict, if:1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgement of conviction, would require a reversal or modification of the judgement as a matter of law by an appellate court.2. That during the trial there occurred, out of the presence of the court, improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict; or3. That new evidence has been discovered since the trial which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.CPL §330.30.It is well-settled that a trial court may only set aside a verdict when the issue raised would require an appellate court, as a matter of law, to reverse or modify the judgment of conviction (CPL §330.30; People v. Carter, 63 NY2d 530, 533 [1984]). In Carter, the court held that while an appellate court may determine both questions of law and fact, and may reverse or modify a judgment when the verdict is against the weight of the evidence, the power granted to a trial judge is “limited to a determination that the trial evidence was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted” (People v. Carter at 632).The standard for reviewing a legal sufficiency claim is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v. Contes, 60 NY2d 620, 621 [1983], quoting Jackson v. Virginia, 443 U.S. 307, 319 [1979]). Thus, legal sufficiency only requires that the jury could have rationally drawn an inference of guilt from the evidence presented at trial (People v. Norman, 85 NY2d 609, 620 [1995]). A conviction will be upheld “so long as the evidence at trial establishes a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion” rendered by the jury (People v. Williams, 84 NY2d 925, 926 [1994]; People v. Bleakley, 69 NY2d 490, 495 [1987]). Accordingly, the evidence must be viewed not only in the light most favorable to the People; but also in the light of the Court’s charge, “as given without exception” (People v. Ford, 11 NY3d 875, 878 [2008]; see also People v. Tejeda, 73 NY2d 958, 960 [1989]). As such, a jury’s verdict is given much deference and should not be disturbed unless unsupported by the record (People v. Williams, 222 AD2d 468 [2nd Dept. 1995]; People v. Garafolo, 44 AD2d 86, 88 [2nd Dept. 1974]).The defendant contents that the verdict should be set aside on two grounds: (1) that the text messages were not properly authenticated and (2) that the Court acted as an advocate in assisting the People in laying their foundation for the text messages.Defendant argues that the text message was improperly admitted into evidence as it was not authenticated because the prosecution failed to establish the identity of the sender of the message. (Defendant’s Affirmation at page 5). Defendant concedes that there is no one-size-fits-all rule for authentication yet in the body of their affirmation argues for a strict and inflexible rule requiring thorough authentication establishing the evidence is genuine and has not been tampered via testimony from the service provider. (Defendant’s Affirmation at page 3, citing New York v. Patterson, 93 NY2d 80, 84 [1999]). The text messages in this case were properly admitted as a party admission, and only one was admitted for the truth of its contents, with the remaining two providing the context. Further, the complainant testified that the messages were actual photographs taken of her phone screen. The Second Department has ruled that where “the context of the text message made no sense unless [they were] sent by defendant…and the complainant’s testimony [establishes] that they were, indeed, actual photographs of the screen of [her] telephone, and that she saw the detective taking the photographs, was sufficient to establish that the [text messages had] been accurately and fairly reproduced, thereby providing a foundation for admission of the photographs.” (internal citations omitted) See People v. Pierre, 41 AD3d 289, 291 (1st Dept 20007). In this case, the complainant testified that the text messages were received from the defendant’s number and the content of the messages would have made no sense unless the originated from the defendant. Furthermore, Detective Boyce testified that he personally viewed the text messages and also took a screenshot. When determining admissibility, the person seeking the introduce the evidence need not rule out all possibilities inconsistent with authenticity. United States v. Pluta 176 F.3d 43, 49 (2nd Cir. 1999). This Court notes that both parties engaged in a lengthy and lively exchange at the end of which this Court ruled the text messages admissible. Given the above, this Court finds that the proper foundation was laid via both these witnesses for the admission of the text messages.The defendant argues that the Court improperly assisted the prosecution in authenticating the text messages and in doing so violated his right to due process. Defendant relies solely on its own argument and provides no caselaw supporting his conclusion.In our current judicial system, it is not uncommon for the courts to take on a more active role in the presentation of evidence, it is when the Court assumes the parties’ traditional roles of deciding what evidence or witnesses to call that it will be considered an abuse of discretion. People v. Arnold 98 NY2d 63, 67 (2002) citing People v. Jamison, 47 NY2d 882 (1979). The Court of Appeals had held that there is no absolute bar to a trial judge asking a particular number of question of a seated witness or [even] recalling a witness to the stand. (internal citations omitted) Id at 68. In this case, the Court’s limited query which consisted of at most 8 questions, is clearly acceptable and within the degree of judicial intervention allowed by law.Accordingly, the defendant’s motion seeking to have the guilty verdict set aside pursuant to CPL §330.30 (1) is denied in its entirety.This constitutes the decision and order of the court.Dated: Kew Gardens, New YorkJuly 23, 2018
