People v. Kelly

• Decision Date: 23 April 2012
• Docket Number: No. 2011KN088746.,2011KN088746.
• Citation: 953 N.Y.S.2d 552,35 Misc.3d 1233,2012 N.Y. Slip Op. 50983
• Parties: PEOPLE of the State of New York v. Joanna KELLY, Defendant.
• Court: New York Criminal Court

35 Misc.3d 1233

953 N.Y.S.2d 552

2012 N.Y. Slip Op. 50983

PEOPLE of the State of New York

v.Joanna KELLY, Defendant.

No. 2011KN088746.

Criminal Court, City of New York,

Kings County.

April 23, 2012.

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...