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
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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