People v. Hamilton

304 A.D.2d 500, 757 N.Y.S.2d 739, 2003 N.Y. App. Div. LEXIS 4497

Opinion

Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), rendered November 19, 2001, convicting defendant, after a jury trial, of unauthorized use of a vehicle in the second degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). The evidence clearly established that defendant knew he did not have the consent of the owner to drive the truck, given the presumption contained in Penal Law § 165.05 (1), which defendant did not rebut (see Matter of Raquel M., 99 NY2d 92 [2002]). There was no evidence to suggest that the person who had rented the truck had permitted defendant to borrow it.

Because the contents of the rental contract were not in dispute and were collateral to the issues, the best evidence rule did not apply, and the court properly admitted a copy of the contract that had been faxed to the prosecutor by the rental company (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 [1994]; Ferraioli v Ferraioli, 295 AD2d 268, 269 [2002]). Concur — Nardelli, J.P., Andrias, Sullivan, Rosenberger and Wallach, JJ.