People v. Strozier
| Decision Date | 15 October 1982 |
| Citation | 116 Misc.2d 103,455 N.Y.S.2d 217 |
| Parties | The PEOPLE of the State of New York v. Estelle STROZIER, Defendant. Justice's Court, Town of Brighton, Monroe County |
| Court | New York Justice Court |
The defendant was charged with driving while intoxicated, a violation of Vehicle and Traffic Law § 1192-3; driving while license suspended, a violation of Vehicle and Traffic Law § 511-1, both misdemeanors, and various other traffic infractions. The case was tried on October 5, 1982 before a jury in the Brighton Town Justice Court. During the trial, the prosecution offered into evidence a video tape made of the defendant shortly after the time of his arrest on December 19, 1981. The video tape was made as a matter of routine in the processing of a driving while intoxicated arrest by the Town of Brighton Police Department pursuant to Rules and Regulations of the Brighton Police Department. The defense objected to the introduction of the video tape on the following grounds:
(1) Video taping of the defendant is an invasion of the defendant's right to privacy, (U.S. Const. 4th Amdt.);
(2) Prior to the video taping of the defendant the defendant should have been warned of the use of the video taping and had a right to refuse the use of a video tape;
(3) The proper foundation for the admissibility of the video tape had not been laid;
(4) Prior to the introduction at the time of trial of any video tape of a defendant, notice must be served upon the defense by the prosecution as to any incriminating statements made by the defendant pursuant to New York Criminal Procedure Law § 710.30.
After hearing the various arguments of the respective counsel, and after having researched considerable law on the matter, this Court holds that the video tape of the defendant during his processing and testing for driving while intoxicated is essentially evidence that "speaks for itself." The video tape is merely a mechanical reproduction of the observations made by the individual(s) who witnessed the actions of the defendant at the time of the video taping. Accordingly, the admissibility of the video tape will ultimately depend upon testimony by either the operator of the video camera or other individual(s) so suited that the video tape fairly and accurately portrays what was observed at the time and place. Essentially, video taping is to be used to illustrate competent and relevant testimony of a witness.
The proper foundation for admissibility of the video tape should include the following:
(1) The identity of the subject matter, i.e. the defendant;
(2) Properly promulgated rules and regulations of the police agency utilizing the video tape program;
(3) The competency of the operator of the video tape machine including his training, certification if required by the police department rules and regulations and actual experience if applicable. (If the operator is unavailable, an individual who was a participant in the video recording might suffice);
(4) The type of video equipment used including the operation method, the type of lens and lens adjustment, the lighting of both the equipment and the area in which the suspect is video taped, the velocity of the video tape camera and the type and quality of the film;
(5) Evidence as to the play-back of the video tape before the trier of fact which should include the speed in which the play back is run as it specifically relates to the speed at which the video tape is made;
(6) Testimony of an individual(s) specifically stating that the video tape fairly, truly and accurately represents the subject matter of the video tape;
(7) The officer testifying should also affirmatively state that the video tape has not been altered and suffers no distortions. But if it has been altered or is distorted, to state the basis of the alteration and/or distortion and the explanation for the alteration and/or distortion;
(8) Continuity of possession of the video tape after the tape had been completed, i.e. chain of custody.
In the present case, the prosecution presented testimony relating the Rules and Regulations of the Brighton Police Department Driving While Intoxicated Video Processing Program. According to the Rules and Regulations, the video tapes should be kept in a locked video cabinet with a log which was to be completed by the sergeant each time the video tape equipment was used for the program. The log further required beginning and ending meter readings (tape footage), the defendant's name, the date and the sergeant's name. Upon completion of an entire tape, the tape was to be logged into evidence and held until thirty days after the final disposition of the last case for which the tape was used.
The video tape was to be started when the arresting officer began to instruct the defendant how to perform the psychomotor tests as outlined in the Rules and Regulations of the Brighton Police Department....
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