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In re Jayshawn B.

New York Family Court, New York County

November 13, 2013

In the Matter of JAYSHAWN B. A Person Alleged to be a Juvenile Delinquent, Respondent.

[975 N.Y.S.2d 864] Jennifer L. Brillante, Esq., for the Respondent.

Natalie Smith, Esq., for the Presentment Agency.

MARY E. BEDNAR, J.

On October 3, 2013 a petition was filed charging the respondent with Petit Larceny (PL § 155.25) and Criminal Possession Of Stolen Property In The Fifth Degree (PL § 165.40). A deposition from Asset Protection Investigator Jude Bright attached to the petition states that the respondent stole items from an American Apparel store on August 23, 2013. The respondent has moved to prevent Investigator Bright from testifying about the alleged larceny, as a video-surveillance tape of the incident has been destroyed. For the reasons that follow I find that the motion must be denied.

FINDINGS OF FACT

The following information has been gleaned from the court file and memoranda of law submitted by respondent and Presentment Agency.

On August 23, 2013 Investigator Bright, an employee of American Apparel, was in his store's camera surveillance room. While watching a live feed from the surveillance camera " of what is happening in the store at the time," (Deposition, October 1, 2013) Investigator Bright allegedly saw the respondent shoplift a watch. The case was referred to the Presentment Agency from Probation on September 30, 2013. On October 1,2013 an attorney from the Presentment Agency met with Investigator Bright, who told the attorney that all American Apparel surveillance video tapes are stored in a central location in Los Angeles, California and that the tape from August 23, 2013 might have been destroyed.

On October 4, 2013 the Presentment Agency sent an e-mail to Investigator Bright, in which they asked about the tape's status. On October 9, 2013 Investigator Bright told the Presentment Agency that the August 23, 2013 videotape was being sent to him from American Apparel's central storage facility in Los Angeles, via Federal Express. On October 15, 2013 Investigator Bright told the Presentment Agency that there had been a mis-communication between the storage facility and him and that the surveillance tape had been destroyed. The Presentment Agency subsequently spoke to a representative of American Apparel, who said that surveillance tapes are kept for 39 days, before they are destroyed. According to the representative from American Apparel the [975 N.Y.S.2d 865] August 23, 2013 tape involving the respondent had been destroyed, because the store believed that the incident was being resolved through the Department of Probation and that court action would not be required.

CONCLUSIONS OF LAW

The oft-mentioned and much misunderstood' best evidence rule simply requires the production of an original writing where its contents are in dispute and sought to be proven...Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence...the proponent of such derivative proof has the heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original. Schozer v. Penn Life Insurance Co. of New York, 84 N.Y.2d 639, 643-644,645, 620 N.Y.S.2d 797, 644 N.E.2d 1353 (citations omitted).

Surveillance videotapes fall under the " best evidence" rule ( see People v. Cyrus, 48 A.D.3d 150, 848 N.Y.S.2d 67 [1st Dept.] ).

In his memorandum of law the respondent argues that testimony by Investigator Bright concerning the content of the videotape would violate the best evidence rule, both because the Presentment Agency has failed to adequately explain the unavailability of the videotape and because the investigator could not give a reliable and accurate portrayal of the contents of the tape. Respondent also argues that the destruction of the videotape violates Brady and Rosario requirements for the production of evidence and asks that the court apply sanctions for the violation.

In their memorandum of law the Presentment Agency argues that the best evidence rule is inapplicable to the facts at bar, because Investigator Bright would be testifying about what he observed while watching the alleged incident in real time through a live video feed. They also argue that there is no Brady or Rosario violation, since law enforcement never had possession or control over the videotape.

Turning to my analysis this court's research has found no New York cases that have ruled on whether the best evidence rule applies to the testimony of observations made through live video feeds. But courts in foreign jurisdictions have ruled on the issue.

In People v. Tharpe-Williams, 286 Ill.App.3d 605, 221 Ill.Dec. 914, 676 N.E.2d 717 the Appellate Court of Illinois upheld a shoplifting conviction that was based on the testimony of two Wal-Mart store loss prevention agents, who watched the thefts in a contemporaneous telecast on the video monitor in their security ...


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