        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

798
KA 11-01345
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BETH A. FAILING, ALSO KNOWN AS BETH A. SPALLINA,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARRIS BEACH PLLC,
PITTSFORD (KELLY S. FOSS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Thomas R.
Morse, A.J.), rendered April 20, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal mischief in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of criminal mischief in the third degree (Penal
Law § 145.05), arising from an incident in which defendant
intentionally scratched the vehicle of her former paramour. Defendant
contends that the People failed to establish that the replacement cost
of the vehicle or its damaged side panels exceeded $250 and thus that
the evidence is legally insufficient to support the conviction. We
reject that contention. “ ‘[I]t is sufficient to define value in
terms of the cost of repair of the property, so long as the property
is repairable’ ” (People v Woodard, 148 AD2d 997, 998, lv denied 74
NY2d 749; see People v Brown, 177 AD2d 942, 942, lv denied 79 NY2d
944). The People presented the testimony of a witness certified by
the State of New York to provide estimates for damage to vehicles, who
estimated that, based on his 20 years of experience in auto repair
work, the cost of repairing the vehicle was $1,145.75. Moreover,
viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that County Court abused
its discretion in admitting testimony regarding her consumption of
alcohol. The victim testified that he observed defendant on the night
                                 -2-                           798
                                                         KA 11-01345

in question and based upon his familiarity with her, she appeared to
have been drinking but did not appear to be intoxicated, and he did
not have concerns about her driving that night. Contrary to
defendant’s contention, that testimony did not implicate her in the
commission of an uncharged crime, i.e., driving while intoxicated (see
People v Coppeta, 125 AD3d 1304, 1304) and, in view of her defense
that she was not at the victim’s house on the night in question, it
was relevant to the issues in the case. “The trial court is granted
broad discretion in making evidentiary rulings in connection with the
preclusion or admission of testimony and such rulings should not be
disturbed absent an abuse of discretion[,]” and we discern no abuse of
discretion here (People v Almonor, 93 NY2d 571, 583).

     Defendant contends for the first time on appeal that the court
erred in allowing the hearsay testimony of the victim concerning what
the neighbor told him about defendant because it improperly bolstered
the neighbor’s testimony. Defendant objected to that testimony on a
ground different from that now asserted on appeal, and she thus failed
to preserve her contention for our review (see People v Smith, 24 AD3d
1253, 1253, lv denied 6 NY3d 818). In any event, defendant’s
contention lacks merit because the victim’s testimony was not admitted
for its truth but, rather, it was properly admitted to complete the
narrative by explaining when and why the victim called the police (see
People v Cullen, 110 AD3d 1474, 1475, affd 24 NY3d 1014).




Entered:   June 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
