People v. Johnson

• Decision Date: 31 December 2015
• Citation: 51 Misc.3d 450,28 N.Y.S.3d 783
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Robert JOHNSON, Defendant.
• Court: New York County Court

51 Misc.3d 450

28 N.Y.S.3d 783

The PEOPLE of the State of New York, Plaintiff,

v.Robert JOHNSON, Defendant.

County Court, Sullivan County, New York.

Dec. 31, 2015.

Donna Maria Lasher, Youngsville, for defendant.

James R. Farrell, District Attorney, Monticello (Eamonn P. Neary of counsel), for plaintiff.

FRANK J. LaBUDA, J.

The issue of the admissibility for Facebook and other electronically stored information evidence (ESI) is novel in U.S. Courts and has little statutory or judicial precedent guidance. This issue before this Court at a Criminal Jury Trial is to what extent is "ESI" evidence admissible at trial, and then to what extent is the proffered "ESI" evidence in this trial admissible.

The instant matter before the Court concerns the admissibility of ESI at the jury trial of Sullivan County Indictment # 64–15, in which Defendant was charged with one count of Predatory Sexual Assault Against A Child, in violation of Penal Law § 130.96. The charges stemmed from allegations by the victim, Cassidy Doe,¹ that for over a period of years, beginning when she was approximately 11 years old and continuing until she was approximately 13 years old her step father, the Defendant herein, subjected her to touching of her breasts and vagina over the course of extended period of time (more than three months), having oral sex over the course of an extended period of time, and having intercourse on two occasions during the spring of 2014. The child witness indicated the alleged incidents occurred in her bedroom at the family residence in the Town of Mamakaing, Sullivan County, New York.²

Pre–Trial Disclosure of Purported Facebook Information

As a threshold matter, the "ESI" evidence regarding Facebook items of the sexual abuse child witness, in this case was first disclosed by the Prosecutor to defendant during the course of pre-trial discovery and omnibus motion practice in connection with this case. The "ESI" items were disclosed as part of discovery because this defendant himself brought the victim's Facebook materials to the New York State Police barracks in Wurtsboro, New York, when first interviewed, in an apparent effort to assail the character of this child victim in the weeks following the girl's initial disclosure of his abuses of her.

The People did not represent, concede, or consent that these items are authentic, nor generated by the child witness, Cassidy Doe, associated with the Facebook materials.³

The People argued that these items must be precluded from evidence in this case, as they are irrelevant, have not been authenticated, and constitute inadmissible hearsay.

Facebook as Electronically Stored Information (ESI)

A brief description of the material now proffered for admission into evidence by defendant is warranted, in connection with the instant analysis of its authentication, relevance and admissibility at trial.

The defendant seeks to admit five separate exhibits. The first exhibit is a photograph which defendant alleges is a picture taken of Cassidy Doe's Facebook page. It is alleged that the photograph is a picture of Facebook pages, created by third parties, which Cassidy has, according to defendant, "Liked." One of those "likes" appears to be a Spanish language page entitled, "Sexo Infinito," and may be considered "mildly" pornographic and sexually suggestive, as are all the proffered exhibits.

Today Facebook is a major communication and identification media. Generally, a person using a Facebook account can "like" a third party page by clicking a "Thumbs up" icon located next to content posted by the third party.⁴ This then has the page appear on the receiver's Facebook page, and in this case the child/witness'.

The next two exhibits submitted by the defendant purport to be photographs taken not of Cassidy Doe's purported Facebook page, but of images alleged by defendant to have been posted from the aforementioned third party site "Sexo Infinito" which are observable by any person who views that site. Both of these exhibits appear to depict couples simulating exotic sexual contact.

The remaining two exhibits depict images of enhanced male genitalia. It appears that these images were printed from a "comment" section, meaning that they can only be accessed by clicking the term "comment," which is adjacent to content posted at a third party site, which in this case was allegedly done again by the child/witness.

The Prosecutor's Argument

1. The Prosecutor maintains Cassidy Doe was the person who caused a "like" associated with "Sexo Infinito" to appear on the first proffered page;

2. Cassidy Doe never viewed the content depicted upon any of the proffered exhibits.

3. Cassidy Doe did not identify the exhibits during direct or cross-examination.

4. The exhibits defendant has offered into evidence are not relevant to the material issues of this case.

The Prosecutor's last argument regarding relevancy will be addressed first by this Court. The Court of Appeals has stated, "as a general rule, evidence is relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case" ( People v. Primo, 96 N.Y.2d 351, 728 N.Y.S.2d 735, 753 N.E.2d 164 [2001] ). Thus, where evidence offered does not tend to prove the existence or non-existence of a material fact directly at issue in a case, it is not relevant. Assuming arguendo the exhibits are legally admissible, they would only tend to show the sexual penchant the alleged victim may or may not have. Consent in this case is not an issue under the law and the material elements of a Predatory Sexual Act Against a child (P.L. 130.96). In fact, a child under the age of 13 is deemed to be incapable of consenting to sexual conduct by definition of law.

The ESI images sought to be introduced by the defendant do not tend to prove the existence or non-existence of any material fact at issue in the case. The purported sexual content is irrelevant, both factually and legally to whether or not this defendant engaged in a course of sexual conduct against Cassidy Doe from the Summer of 2011 to on or about May 2013.

Defendant has not offered a scintilla of evidence that would support materiality or relevancy in this case.

Additionally, there has been no evidence that Cassidy Doe ever operated the purported Facebook account or "liked" the third-party site in question, nor is there any evidence that the victim ever viewed any of the pictures contained on that third-party site, including those purportedly added to that site by its administrator or an operator thereof, nor the images appearing in the "comment" section thereof. These exhibits cannot be construed as relevant because there is no evidence to suggest a nexus between the images contained on the "Sexo Infinito" page and the elements of Predatorial Sexual Act Against a Child. (PL 130.96)

Assuming arguendo, that the "like" choice was made on the Facebook page by the witness, any question as to what she may have liked on Facebook and pictures associated with any third party account do not tend to prove or disprove any material fact that relates to this defendant's guilt. Whether the victim "liked" or did not "like" a third-party site that posts sexualized content is irrelevant to the guilt or non-guilt issues at trial.⁵

Facebook to Impeach the Witnesses Credibility

The Defendant's argument to use the exhibits to impeach the witness' credibility also fails under the law. Defendant chose not to examine the victim, Cassidy Doe, with respect to the association of her purported Facebook page with the third-party site, and furthermore, never questioned the victim as to whether she viewed the third-party site ESI images now offered by defendant into evidence. A Facebook page associated with sexualized content, purported to have been accessed well after defendant's access to abuse the victim had been foreclosed by the removal of the victim from defendant's home, does not go to this witness's credibility. Furthermore, no foundation was made by the Defendant to use the ESI as an inconsistent statement.

"A cross-examiner is bound by the answers of a witness to questions concerning collateral matters (see People v. Pavao, 59 N.Y.2d 282, 288, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ). Thus, ‘a party who is cross-examining the witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict the witness' testimony concerning collateral matters solely for the purpose of impeaching that witness' credibility’ ( Pavao, supra, 59 N.Y.2d at 288–289, 464 N.Y.S.2d 458, 451 N.E.2d 216 )." People v. Inniss, 192 A.D.2d 553, 554, 596 N.Y.S.2d 98 [2d Dept.1993], affirmed 83 N.Y.2d 653, 612 N.Y.S.2d 360, 634 N.E.2d 961 [1994]. Thus, the collateral evidence rule, which is binding upon this Court, precludes defendant from now offering the material at issue.

"The general rule of evidence in this State concerning the impeachment of witnesses with respect to collateral matters is that ‘the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility.’ (Richardson, Evidence [Prince, 10th ed.], § 491, p. 477.) It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility. ( People v. Zabrocky, 26 N.Y.2d 530, 535, 311 N.Y.S.2d 892, 260 N.E.2d 529 [1970] ; People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642 [1969], cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96 ; People v. Duncan, 13 N.Y.2d 37, 41, 241 N.Y.S.2d 825, 191 N.E.2d 888 [1963] ; People v. Sorge, 301 N.Y. 198, 201, 93 N.E.2d 637 [1950] )" Pavao, supra, 59 N.Y.2d at 288–289, 464 N.Y.S.2d 458, 451 N.E.2d 216.

In this context, defendant's proffer of the ESI material is an attempt to assail the credibility of his victim in...