<partyblock><br><br><div align="center"><b><font size="+1">The People of the State of New York, Respondent,<br><br>against<br><br>Phyllis Miley, Appellant.</font></b></div><br><br><p>Appellate Advocates (Hannah Zhao of counsel), for appellant.Queens County District Attorney (John M. Castellano, Jonnette Traill and Hannah X. Collins of counsel), for respondent.</p><p>Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Douglas S. Wong, J.), rendered June 16, 2016. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child, and imposed sentence.</p><p>ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the Criminal Court for a new trial.</p><p>Defendant was charged with endangering the welfare of a child (Penal Law ยง 260.10 [1]) and assault in the third degree (Penal Law ยง 120.00 [1]). At the close of evidence at a jury trial, the Criminal Court reduced the charge of assault in the third degree to attempted assault in the third degree (Penal Law ยงยง 110.00, 120.00 [1]). Following the trial, defendant was convicted of endangering the welfare of a child and acquitted of attempted assault in the third degree.</p><p>Defendant's contention that the evidence was legally insufficient to establish her guilt of endangering the welfare of a child beyond a reasonable doubt is unpreserved for appellate review (<i>see</i> CPL 470.05 [2]; <a href="../2008/2008_09254.htm" target="_blank"><i>People v Hawkins</i>, 11 NY3d 484</a>, 491-492 [2008]). In any event, viewing the evidence in the light most favorable to the People (<i>see People v Contes</i>, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt, beyond a reasonable doubt.</p><p>Moreover, upon the exercise of our factual review power (<i>see</i> CPL 470.15 [5]; <a href="../2007/2007_09814.htm" target="_blank"><i>People v Danielson</i>, 9 NY3d 342</a>, 348-349 [2007]), while according great deference to the trier of fact's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (<a href="../2006/2006_08641.htm" target="_blank"><i>see People v Lane</i>, 7 NY3d 888</a>, 890 [2006]; <i>People v Mateo</i>, 2 NY3d 383, 410 [2004]; <i>People v Bleakley</i>, 69 NY2d 490, 495 [1987]), we find that the verdict was not against <font color="FF0000">[*2]</font>the weight of the evidence (<a href="../2006/2006_08640.htm" target="_blank"><i>see People v Romero</i>, 7 NY3d 633</a> [2006]). Contrary to defendant's contention, the acquittal of attempted assault in the third degree was not necessarily "conclusive as to a necessary element" of endangering the welfare of a child (<i>People v Tucker</i>, 55 NY2d 1, 7 [1981]; <a href="../2015/2015_25440.htm" target="_blank"><i>see People v Moore</i>, 51 Misc 3d 6</a>, 12 [App Term, 2d Dept, 2d, 11th &amp; 13th Jud Dists 2015]).</p><p>Nevertheless, defendant is correct that reversal is required in light of the erroneous admission into evidence, under the present sense impression exception to the hearsay rule, of a recording of a 911 call, as the call had been made about one hour after the incident, during which time the caller, among other things, filled out a report and related the incident to another party who suggested the caller make the 911 call (<i>see People v Matyszewski</i>, 47 AD3d 646, 646 [2008]; <a href="../2006/2006_07522.htm" target="_blank"><i>People v Ortiz</i>, 33 AD3d 1044</a> [2006]). Contrary to the People's assertion, defendant's contention is preserved for appellate review (<i>see</i> CPL 470.05 [2]). Moreover, the error in admitting the recording, which also constituted improper bolstering (<a href="../2012/2012_04857.htm" target="_blank"><i>see People v Spencer</i>, 96 AD3d 1552</a>, 1553 [2012]), was not harmless, as this case turned entirely on credibility and the proof of defendant's guilt was far from overwhelming (<a href="../2004/2004_09543.htm" target="_blank"><i>see People v Allen</i>, 13 AD3d 892</a> [2004]).</p><p>In light of our determination, we need not reach defendant's remaining contentions.</p><p>Accordingly, the judgment of conviction is reversed and the matter is remitted to the Criminal Court for a new trial.</p><p>SIEGAL, J.P., PESCE and ELLIOT, JJ., concur.</p><br>ENTER:<br>Paul Kenny<br>Chief Clerk<br>Decision Date: May 31, 2019<br><br><div align="center"><form method="LINK" action="../../slipidx/at_2_idxtable.shtml"><input type="submit" value="Return to Decision List"></form></div></partyblock>