People v. Matos
| Decision Date | 02 December 2021 |
| Docket Number | Index No. 72376-2021 |
| Citation | 73 Misc.3d 1167,157 N.Y.S.3d 902 |
| Parties | The PEOPLE of the State of New York v. Yolanda MATOS, Defendant. |
| Court | New York Supreme Court |
Eric Gonzalez, District Attorney, Brooklyn (Chelsea Toder of counsel), for the People.
Justin C. Bonus, Forest Hills, for defendant.
Heidi C. Cesare, J. Defendant moves to renew and reargue her motion for the court to inspect the grand jury minutes and dismiss the indictment. The motion to renew and reargue is granted because this court was unaware that defendant apparently made a prior oral motion to another Justice that raised the same issues that defendant is seeking to raise in the present motion. The District Attorney does not dispute that defendant made such a prior oral motion. This court will, therefore, review this motion on the merits.
Defendant is a federal correctional officer charged with criminally possessing a firearm (PL 265.03 [1] [b], [3]; 265.01 [1]; PL 265.01—B [1]). The charges are based on the allegation that defendant discharged a firearm on a Brooklyn street. To prove those charges at the grand jury, the District Attorney relied upon surveillance video depicting a person allegedly discharging a firearm. For the purpose of this motion, defendant does not dispute that she is the person depicted on the video (see Bonus affirmation in supp of mot at ¶ 4, n 2).1 The images on the video are the only evidence offered to prove that the item defendant possessed was an operable firearm.
Defendant's motion raises four claims. The first is that her occupation as a federal correctional officer entitles her to exemption from prosecution. The second is that the surveillance video was not properly authenticated at the grand jury. The third is that the video, even if authentic, is insufficient to establish that she possessed an operable firearm. The fourth is that a Bureau of Prisons Special Investigator Agent gave false testimony. This court addresses each claim below.
Defendant argues first that she is exempt from prosecution under the Penal Law § 265.20 exemption that applies to a person in the service of the United States and duly authorized by federal law to possess a firearm (see PL 265.20 [a] [1] [d]). In defendant's view, she is authorized to possess a firearm under the Law Enforcement Officers Safety Act (LEOSA) (see 18 USC 926B ). This federal law allows a "qualified law enforcement officer" who is carrying the necessary identification to possess a concealed firearm notwithstanding any state law to the contrary ( 18 USC 926B [a], [c], [d]).
( 18 USC 926B [c]).
Defendant's argument that she is exempt from prosecution under Penal Law § 265.20 (a) (1) (d) based on the LEOSA provides no basis to dismiss the indictment. The exemptions under Penal Law § 265.20 "are in the nature of a defense" that "the defendant is required to raise ... before the government is required to disprove it beyond a reasonable doubt" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, PL § 265.20 Exemptions, Introduction [online version, last accessed November 29, 2021]). Indeed, the issue of whether the LEOSA applies in this case involves questions of fact that cannot be resolved on the current record. Defendant could have raised this defense at the grand jury by testifying or requesting the grand jury to cause designated persons to be called as witnesses (see CPL 190.50 [5] [a] ; [6]), but evidently elected not to do so. In such a situation, the claimed exemption provides a defense to be raised and litigated at trial rather than a ground to dismiss the indictment (see People v. LaPierre , 189 A.D.3d 1813, 1816—1817, 137 N.Y.S.3d 583 [3d Dept. 2020] ; People v. Washington , 209 A.D.2d 162, 163, 618 N.Y.S.2d 32 [1st Dept. 1994], aff'd 86 N.Y.2d 853, 633 N.Y.S.2d 476, 657 N.E.2d 497 [1995] ).2
Defendant's next claim is that the District Attorney failed to authentic the surveillance video at the grand jury. The District Attorney did not call the custodian of the video as a witness at the grand jury. Instead, the District Attorney sought to authenticate the video through the testimony of the police detective who obtained the video from the custodian. That detective's testimony is summarized below.
On May 4, 2020, Detective David Lambert of the 79th Precinct Detective Squad was assigned as lead detective to investigate a "shots fired job" that occurred on May 2, 2020, outside of 515 Lafayette Avenue in Brooklyn, NY On May 4, 2020, Lambert went to 511 Lafayette Avenue and met with the owner of the building. The owner was the custodian of the video surveillance system at the building.
During the meeting with the building owner, Lambert "directed him to the date and time" of the shooting and "asked to view the cameras." The owner "controlled" the video surveillance from an app on his cell phone, and Lambert viewed the video inside the building in the app on the cell phone. Lambert testified that the cameras appeared to be "recording contemporaneously with what was happening," that the cameras were "recording the events as they were occurring," and that "the camera system" was "working accurately."
After Lambert viewed the video, the owner "collected it on his cell phone and emailed it" to Lambert. The surveillance video was "placed on a disc" that Lambert viewed before appearing at the grand jury. Lambert testified that the video on the disc was the same video that he had viewed on the owner's cell phone. He testified that the contents of the disc "fairly and accurately represent[ed] ... the video surveillance clips that [he] watched on [the owner's] phone." When the District Attorney played one of the two admitted surveillance videos at the grand jury, Lambert testified that the date on the video was correct but that the time stamp was about one hour behind.
In the motion, defendant argues that the District Attorney did not establish a sufficient foundation for admitting the surveillance video. In defendant's view, the video was "nothing more than hearsay and unverified based upon a lack of chain of custody" (Bonus reply affirmation at ¶ 7). She further argues that the video could not be admitted at the grand jury without testimony from the custodian of the video. The District Attorney responds that the surveillance video evidence "was legally proper" (Toder affirmation in opp at p. 6, ¶ 8 [emphasis in original]).
To be admissible at the grand jury, the video must be authentic (see People v. Patterson , 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ). "Authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it, and the foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted" ( People v. Robinson , 187 A.D.3d 1216, 1217, 131 N.Y.S.3d 637 [2d Dept. 2020] [internal quotation marks and brackets omitted], quoting People v. McGee , 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 399 N.E.2d 1177 [1979] and citing People v. Price , 29 N.Y.3d 472, 476, 58 N.Y.S.3d 259, 80 N.E.3d 1005 [2017] ).
A video can be authenticated in more than one way. A video can be "authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted" ( People v. Patterson , 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 ). Other testimony, "expert or otherwise, may also establish that a videotape truly and accurately represents what was before the camera" ( id. [internal quotation marks and citation omitted]).
One way to authenticate a surveillance video is through the testimony of the police officer who...
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