Opinion
No. 2011KN088746.
2012-04-23
PEOPLE of the State of New York v. Joanna KELLY, Defendant.
Claire Nicolay, The Legal Aid Society, Brooklyn, NY, for the Defendant. Michael K. Leigh, Kings County District Attorney's Office, Brooklyn, NY, for the People.
Claire Nicolay, The Legal Aid Society, Brooklyn, NY, for the Defendant. Michael K. Leigh, Kings County District Attorney's Office, Brooklyn, NY, for the People.
JACQUELINE D. WILLIAMS, J.
The defendant, Joanna Kelly, is charged with one count of Criminal Trespass in the Second Degree (Penal Law [“PL”] § 140.15) and one count of Trespass (PL § 140.05).
The defendant has moved for an order dismissing the information as facially insufficient pursuant to Criminal Procedure Law [“CPL”] §§ 170.30, 170.35 and 100.40. The People oppose the motion.
For the reasons set forth below, the defendant's motion is granted.
FINDINGS OF FACT
On November 8, 2011, the defendant was arraigned on a misdemeanor complaint, charging her with the abovementioned offenses. The court adjourned the case until January 10, 2012, for conversion of the accusatory instrument.
The accusatory instrument alleges that on November 3, 2011, at approximately 3:30 pm, at 298 Grove Street, Kings County, New York,
“Deponent is informed by Erica Castillo that, at the above time and place, defendant is observed on video surveillance knocking on the informant's bedroom door, at above mentioned location, and defendant is then observed entering said bedroom and rubbing an unknown substance onto the informant's bed, baby's crib, towel and other items, and defendant is then observed exiting the bedroom and then returning again to continue.
“Deponent is further informed by informant that informant is the custodian of the above-described location and defendant did not have permission or authority to enter or remain therein.”
On January 12, 2012, the People served and filed the supporting deposition of the complaining witness, Erica Castillo, along with a Statement of Readiness. The supporting deposition reads as follows:
“I, Erica Castillo, read the accusatory instrument filed in this action. The facts in that instrument stated to be on information furnished by me are true to my personal knowledge.”
In seeking dismissal of the accusatory instrument, defense counsel alleges that the statements regarding the complaining witness' observations from surveillance footage are hearsay and therefore can not form the basis of an accusatory instrument. Defense counsel further argues that the surveillance footage has not been authenticated and thus may not be referenced as a factual source in the criminal court complaint.
In opposition, the People argue that the subsequent viewing of a crime on a surveillance videotape by the complaining witness is not hearsay and thus the allegations asserted by the People satisfy CPL § 100.40(1)(c), making the accusatory instrument facially sufficient.
CONCLUSIONS OF LAW
To be facially sufficient, an accusatory instrument must (1) allege non-hearsay facts that would give the court reasonable cause to believe that a defendant committed the offense(s) charged and (2) establish, if true, every element of any such offense charged and the defendant's commission thereof. SeeCPL § 100.40(1); People v. Dumas, 68 N.Y.2d 729, 731, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986); People v. Alejandro, 70 N.Y.2d 133, 137, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). The facts in an accusatory instrument must “establish a prima facie case,” supported by legally sufficient evidence to “establish that the defendant committed the crime.” Alejandro 70 N.Y.2d at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71.
When reviewing accusatory instruments for facial insufficiency, courts should give the accusatory instrument “a fair and not overly restrictive or technical reading ... [s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000).
In this case, the defendant alleges that the accusatory instrument is not based upon the complaining witness's personal knowledge, but is instead based solely upon her review of an unauthenticated surveillance video.
The non-hearsay requirement under CPL § 100.40(1) is met so long as the allegation would be admissible under some hearsay rule exception. People v. Casey, 95 N.Y.2d 354, 361, 717 N.Y.S.2d 88, 740 N.E.2d 233 (2000). Admissibility of a videotape into evidence requires proof that it is accurate or authentic, and that it has not been tampered with. See People v. Ely, 68 N.Y.2d 520, 510 N.Y.S.2d 532, 503 N.E.2d 88 (1986); People v. Orlando, 61 A.D.3d 1001, 878 N.Y.S.2d 185 (App.Div., 2d Dept.2009). Testimony, expert or otherwise, may also be used to establish that a video “truly and accurately represents what was before the camera .” People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 (1999), citing People v. Byrnes, 33 N.Y.2d 343, 349, 352 N.Y.S.2d 913, 308 N.E.2d 435 (1974)); People v. Wemette, 285 A.D.2d 729, 728 N.Y.S.2d 805 (App.Div., 3d Dept.2001) (complainant's testimony that the events depicted on videotape were a fair and accurate representation of her observations provided an adequate foundation for the videotape's admission). To authenticate the instant video, the People also could have submitted an affidavit from appropriate individuals, establishing that the video recording “truly and accurately depicted what was before the camera on given dates, that it was not altered in any way and establishing a proper chain of custody.” People v. Allison, 2008 N.Y. Slip Op 52008U, 3, 21 Misc.3d 1108A (Dist. Ct., Nassau County 2008), citing People v. Patterson, supra; Zegarelli v. Hughes, 3 N.Y.3d 64, 814 N.E.2d 795, 781 N.Y.S.2d 488 (2004).
Here, the accusatory instrument and supporting deposition do not allege that the video truly and accurately represented the defendant's actions on November 3, 2011, that the video was not altered in any way and that a proper chain of custody was established. There was no affidavit from anyone establishing as such. The allegations in the accusatory instrument are based upon a non-authenticated video obtained from an unknown source. Thus, no evidentiary foundation was established for the video viewed by the complaining witness. People v. Allison supra. There are no facts of an evidentiary character as to who personally placed and tested the surveillance camera and the chain of custody of the video. Such descriptions would have provided reasonable assurances “that the camera recorded reliably and that the videotape accurately depicted the events that it purported to depict;' providing a proper foundation for the admission of the video recording into evidence.” People v. Henderson, 27 Misc.3d 1232A, 911 N.Y.S.2d 695 (Dist. Ct., Nassau County 2010).
Because it has not been authenticated, the instant video recording consists of inadmissible hearsay. See, e.g., People v. Schell, 18 Misc.3d 972, 849 N.Y.S.2d 882, 2008 N.Y. Slip Op 28027 (Crim. Ct., Richmond County 2008) (allegations that were not clear as to whether deponent observed defendant's reckless driving as it transpired constituted hearsay and were thus facially insufficient); Matter of Tyshawn M., 32 Misc.3d 689, 692, 928 N.Y.S.2d 630 (Fam. Ct., Monroe County 2011) (petition and supporting depositions failed to allege non-hearsay facts identifying respondent as a participant in the crime because complainant's identification of respondent was based upon a viewing of a non-authenticated video obtained from an unknown source).
The People cite People v. Allison, supra, People v. Patten, 32 Misc.3d 440, 927 N.Y.S.2d 542 (2011), supra, and People v. Lambert, 2002 WL 1769931, 2002 N.Y. Misc. LEXIS 910, 2002 N.Y. Slip Op 50278U (Crim. Ct., Queens County 2002) in support of their argument that witnesses may make observations of a video recording without violating the hearsay rule. See Patten at 444, 927 N.Y.S.2d 542 (“observations of a videotape are not hearsay”); Lambert at 10 (“one who personally observes the content of a videotape can give sworn testimony about his observations without violating the hearsay rule”).
In People v. Allison, the court dismissed the information, which was based on a supporting deposition from a store employee who did not personally or contemporaneously observe the defendant's alleged actions, but instead merely reviewed a surveillance video after the fact. The court found that the employee's statements did not constitute “facts of an evidentiary character.” Allison at 3. As these facts are analogous to the facts of the instant case, People v. Allison does not support the People's argument.
People v. Patten is distinguishable from the instant matter. In Patten, the information was subscribed by a deponent police officer who reviewed a video of a public fight. Attached to the information were supporting depositions from two other police officers who had personally observed the fight, as well as later reviewed the video. In those depositions, the police officers with first-hand knowledge of the fight attested that the fight depicted on the videotape was a fair and accurate representation of their observations in person, providing an adequate foundation for the video's admission. Here, the complaining witness did not observe the defendant's alleged conduct while it transpired, either in person or through video monitoring. See Allison at 3.
In People v. Lambert, the information alleges that the deponent police officer personally observed defendants in possession of a video camera and bleeding and wounded pit bull dogs. The deponent reviewed the defendant's videotape, which showed the pit bull dogs fighting. The defendants were also heard on the tape urging the dogs to fight each other. The court found that the deponent officer's “observations of the bleeding dogs, and his actual review, on the spot, of the videotape showing the recently concluded dog fight, were firsthand observations which fully supported the charges.” As in People v. Patten, the deponent officer was able to attest in his supporting deposition that the dog fight depicted on the videotape was a fair and accurate representation of his personal observations of the dog's wounds.
Accordingly, the People's argument is not persuasive. In the absence of proper authentication of the video recording, the complainant's observations of the video recording constitute as hearsay, unsupported by sworn allegations of fact, requiring dismissal of the accusatory instrument.
CONCLUSION
The defendant's motion to dismiss the accusatory instrument on the ground of facial insufficiency is granted.
This opinion constitutes the decision and order of the court.