People v Miller
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[*1]
People v Miller
2015 NY Slip Op 51391(U)
Decided on September 30, 2015
Criminal Court Of The City Of New York, Kings County
Borrok, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 30, 2015
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
Vickeya Miller, Defendant.
2014KN096127
For Defendant:
Shekera Shahid
The Legal Aid Society
111 Livingston Street
Brooklyn, NY 11201
For the People:
Kenneth Thompson
District Attorney, Kings County
by Di'Indra Forgenie Esq., Assistant District Attorney
Brooklyn, of Counsel
Andrew Borrok, J.
On January 21, 2015, the defendant was arraigned in the DAT part and charged with Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) — i.e. two class A misdemeanors. The accusatory instrument provides in relevant part that: On or about November 14, 2014 at approximately 2:35 p.m. at 592 Rockaway Avenue, in the County of Kings, State of New York:The deponent [Police Officer Stacey Ellis] states that the deponent reviewed video [*2]surveillance footage from the above time and place and observed defendant take Tawona Nicholas' cellphone and place said cellphone in defendant's bag, and leave the location Deponent is informed by Tawona Nicholas that informant is the custodian of the above mentioned cellphone and that defendant had neither permission nor authority to take, use, or otherwise exercise dominion or control over said cellphone.Deponent is informed by Jermaine Miller that informant is employed as a security guard at the above location and that the above mentioned video surveillance footage is kept in the normal course of business and that said video surveillance footage accurately depicts the above time and place.
The People were not ready for trial because the accusatory instrument was not converted and the matter was adjourned until March 18, 2015 to Part AP2.
On March 18, 2015, the People still did not have the necessary supporting deposition to convert the accusatory instrument and the matter was further adjourned for conversion until April 29, 2015. However, off-calendar, on March 27, 2015, the People served and filed a statement of readiness (SOR) and the supporting deposition of Tawona Nicholas. Subsequently, the People served and filed off-calendar a second SOR and the supporting deposition of Jermaine Miller on April 17, 2015.
On April 29, 2015, the People indicated that they maintained their readiness for trial and served and filed discovery by stipulation (DBS) and the matter was adjourned until June 8, 2015 for any necessary hearings and trial. On June 8, 2015, the People indicated that they were not ready for trial because the assigned assistant district attorney was actually engaged on trial in Trial Part 2 and requested a further seven day adjournment. Thereafter, the matter was adjourned until July 28, 2015, and on that date, the defendant served and filed the instant motion to dismiss on speedy trial grounds pursuant to CPL § 30.30(1)(b) and the court adjourned the case until October 1, 2015 for the court's decision.
The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v Santos, 68 NY2d 859, 861 (1986). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand the motion to dismiss. Id.
The People cannot be ready for trial until they have converted a misdemeanor complaint into an information. People v Caussade, 162 AD2d 4, 8 (2d Dept 1990). CPL § 100.40(1) provides that pursuant to CPL § 100.15 an information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. In order for a misdemeanor complaint to be converted into an information, the factual portion of the instrument must contain "non-hearsay allegations that establish, if true, every element of the crime charged and defendant's commission thereof." CPL § 100.40(1)(c); People v. Alejandro, 70 NY2d 133 (1987).
In the case before the court, the defendant argues that the People were required to serve him and file with the court both the supporting deposition of Tawona Nicholas and the supporting disposition of Jermaine Miller in order to fully convert the charges of Petit Larceny and Criminal Possession of Stolen Property. Inasmuch as those supporting depositions were neither served on defense counsel nor filed with the court until April 17, 2015, the defendant argues that the time period between January 21, 2015, the day of the defendant's arraignment, and April 17, 2015, the day that the supporting deposition of Jermaine Miller was served and filed, is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). In the alternative, the defendant argues that if the supporting deposition of Jermaine Miller was not necessary to convert the misdemeanor complaint into an information, the People needed to file a superceding information to remove all hearsay allegations of the accusatory instrument and because the People have not filed a superceding information, the People have never been ready for trial. The court simply does not agree.
PETIT LARCENY - CONVERSION
A person is guilty of Petit Larceny (PL § 155.25) "when he steals property." For the charge of Petit Larceny to be facially sufficient, the accusatory instrument must contain facts that (i) the defendant stole property and (ii) that the property belonged to someone else. Here, the factual portion of the accusatory instrument served at arraignments provided that (i) Police Officer Stacey Ellis reviewed surveillance footage and observed the defendant take a cellphone from Tawona Nicholas, place the cellphone in the defendant's bag, and leave the location, and (ii) Officer Ellis had been informed by Tawona Nicholas that Tawona Nicholas is the custodian of that cellphone and that the defendant had neither permission nor authority to take, use, or otherwise exercise dominion or control over the cellphone. The accusatory instrument was signed under penalties of perjury by Officer Ellis. That is, and for the avoidance of doubt, that the accusatory instrument contained non-hearsay allegations that the defendant took a cellphone from Tawona Nicholas [FN1] . However, the accusatory instrument also contained hearsay allegations that [*3]the cellphone belonged to someone other than the defendant — i.e., Tawona Nicholas. Therefore, in order to convert the charge of Petit Larceny (PL § 155.25), the People were required to serve and file the supporting deposition of Tawona Nicholas corroborating that the cellphone was not the defendant's cellphone and that the defendant did not have permission or authority to use the cellphone which the defendant took from Tawona Nicholas satisfying that obligation. The People served and filed a SOR and the supporting deposition of Tawona Nicholas off-calendar on March 27, 2015 which supporting deposition fully converted the charge of Petit Larceny (PL § 155.25). Although the accusatory instrument still contained the hearsay allegations of Jermaine Miller, (i.e., that (i) Jermaine Miller is employed as a security guard at the location, (ii) the video surveillance footage is kept in the normal course of business and (iii) video surveillance footage accurately depicts the time and place of occurrence), these facts are not necessary to make out the prima facie case of Petit Larceny [FN2] . Accordingly, the supporting deposition of Jermaine Miller is not necessary to convert the charge of Petit Larceny and only the 65 day period between January 21, 2015 and March 27, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
CRIMINAL POSSESSION OF STOLEN PROPERTY IN THE FIFTH DEGREE - CONVERSION
A person is guilty of Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) "when he knowingly possesses stolen property, with the intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof." For the charge of Criminal Possession of Stolen Property in the Fifth Degree to be facially sufficient, the accusatory instrument must contain facts that (i) the defendant possessed stolen property and that (ii) the owner of said property did not give the defendant permission or authority to take, use or otherwise exercise dominion or control over said property. As discussed more fully above, the factual portion of the accusatory instrument provides non-hearsay allegations that the defendant took a cellphone from Tawona Nicholas, and hearsay allegations that the cellphone belonged to Tawona Nicholas. Therefore, in order to convert the charge of Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), the People needed to serve and file the supporting deposition of Tawona Nicholas corroborating that the cellphone was not the defendant's cellphone and that the defendant did not otherwise have permission or authority to possess the cellphone. This was accomplished off calendar on March 27, 2015 when the People served and filed a SOR and the supporting deposition of Tawona Nicholas as discussed above. With respect [*4]to this charge (as with Petit Larceny discussed above), the hearsay allegations of Jermaine Miller are also not necessary to make out the prima facie case of Criminal Possession of Stolen Property. Therefore, the People did not need the supporting deposition of Jermaine Miller to convert the charge of Criminal Possession of Stolen Property. Accordingly, only the 65 day period between January 21, 2015 and March 27, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
It is well settled that the People are entitled to a reasonable adjournment to prepare for hearings and trial. People v Greene, 223 AD2d 474 (1st Dept), appeal denied 88 NY2d 879 (1996); People v Hernandez, 268 AD2d 344 (1st Dept), lv denied 95 NY2d 253 (2000); People v Lucas, 25 Misc 3d 1213(A), (Crim Ct, Kings County 2009). Therefore, during the period between April 29, 2015, when the People served and filed DBS, and June 8, 2015, the day the matter was adjourned to for hearings and trial, no additional time was chargeable to the People for CPL § 30.30 purposes.
Post-readiness delays can be chargeable to the People only if they become unready. People v Anderson, 66 NY2d 529 (1985). Therefore, when a case is in a post-readiness posture, for CPL § 30.30 purposes, specific adjournments requested by the People are chargeable as non-excludable time, but adjournments that extend beyond the specific adjournment requested by the People are excluded time. People v Bruno, 300 AD2d 93, 95 (1st Dept), lv denied 100 NY2d 641 (2003); People v Dushain, 247 AD2d 234, 236 (1st Dept), appeal denied 91 NY2d 1007 (1998).
In this case, the People indicated on June 8, 2015 that they were not ready for trial because the assigned assistant district attorney was engaged on trial in Trial Part 2 and requested an additional seven day adjournment. However, the court adjourned the matter for 20 days (i.e., until July 28, 2015) for any necessary hearings and trial. For CPL § 30.30 purposes, only the seven day period actually requested by the People is chargeable as nonexcludable time. Bruno, 300 AD2d. Therefore, as of July 28, 2015, for CPL § 30.30 purposes, a total of 72 days were chargeable to the People as non-excludable time.
An adjournment for motion practice and the period during which the motion is "under consideration by the court" is excludable time. CPL § 30.30(4)(a); People v Stewart, 57 AD3d 1312, 1314 (3rd Dept 2008). The defendant served and filed the instant motion to dismiss on speedy trial grounds pursuant to CPL § 30.30(1)(b) on July 28, 2015. The period from July 28, 2015 until October 1, 2015, the date scheduled for this court's decision and for any necessary hearings and trial, is thus excludable time under CPL § 30.30. Stewart, 57 AD3d.
NO NEED TO FILE A SUPERCEDING INFORMATION
Dated: September 30, 2015
_____________________________
ANDREW BORROK
J.C.C. Footnotes
Footnote 1:Hearsay is an out of court statement (emphasis added) offered for the truth of the matter asserted. Jerome Prince, Richardson on Evidence § 8-101 (Farrell 11th ed 1995). Hearsay is problematic in that it is based on the credibility of someone other than the deponent who is not subject to cross examination. Personal observations of an informant based upon his or her review of a videotape does not constitute hearsay. Put another way, although the audio portion of a videotape may be hearsay requiring a specific hearsay exception to be admissible, the visual component is simply not hearsay. The deponent in this case (i.e., Officer Ellis) can be cross examined at trial as to what he personally observed on the videotape. See People v Ham, 43 Misc 3d 1227(A) (Crim Ct, Kings County 2014); People v Patten, 32 Misc 3d 440, 444 (City Court, Long Beach New York 2011) ("observations of a videotape are not hearsay"); Lambert, 2002 WL 1769931 at *3 ("one who personally observes the content of a videotape can give sworn testimony about his observations without violating the hearsay rule"); People v West, 41 Misc 3d 542 (Crim Ct, Bronx County 2013) (allegations in the supporting deposition that complainant saw the defendant take $100.00 from the register were sufficient where those statements were based upon deponent's review of a videotape); People v Giarraputo 37 Misc 3d 486, 487 (Crim Ct, Richmond County 2012) ("it is axiomatic that personal observations of a condition, event, incident or tangible item made by a witness are not hearsay").
Footnote 2:To require otherwise would require legislative enactment.
Decided on September 30, 2015
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
Vickeya Miller, Defendant.
2014KN096127
For Defendant:
Shekera Shahid
The Legal Aid Society
111 Livingston Street
Brooklyn, NY 11201
For the People:
Kenneth Thompson
District Attorney, Kings County
by Di'Indra Forgenie Esq., Assistant District Attorney
Brooklyn, of Counsel
Andrew Borrok, J.
This matter is before the court because the defendant has moved to dismiss the pending charges arguing that 94 days have elapsed since the defendant's arraignment that are chargeable as non-excludable time pursuant to CPL § 30.30(1)(b) and that the defendant has therefore been denied his right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 30.30(1)(b) and 170.30(1)(e). The argument is premised upon the fact that the custodian witness for a surveillance video did not sign a supporting deposition until April 17, 2015, i.e., 85 following the defendant's arraignment. For the reasons set forth below, the court finds that only 72 days have elapsed that are chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the defendant's motion is therefore denied.
THE RELEVANT FACTS AND CIRCUMSTANCES
On January 21, 2015, the defendant was arraigned in the DAT part and charged with Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) — i.e. two class A misdemeanors. The accusatory instrument provides in relevant part that: On or about November 14, 2014 at approximately 2:35 p.m. at 592 Rockaway Avenue, in the County of Kings, State of New York:The deponent [Police Officer Stacey Ellis] states that the deponent reviewed video [*2]surveillance footage from the above time and place and observed defendant take Tawona Nicholas' cellphone and place said cellphone in defendant's bag, and leave the location Deponent is informed by Tawona Nicholas that informant is the custodian of the above mentioned cellphone and that defendant had neither permission nor authority to take, use, or otherwise exercise dominion or control over said cellphone.Deponent is informed by Jermaine Miller that informant is employed as a security guard at the above location and that the above mentioned video surveillance footage is kept in the normal course of business and that said video surveillance footage accurately depicts the above time and place.
The People were not ready for trial because the accusatory instrument was not converted and the matter was adjourned until March 18, 2015 to Part AP2.
On March 18, 2015, the People still did not have the necessary supporting deposition to convert the accusatory instrument and the matter was further adjourned for conversion until April 29, 2015. However, off-calendar, on March 27, 2015, the People served and filed a statement of readiness (SOR) and the supporting deposition of Tawona Nicholas. Subsequently, the People served and filed off-calendar a second SOR and the supporting deposition of Jermaine Miller on April 17, 2015.
On April 29, 2015, the People indicated that they maintained their readiness for trial and served and filed discovery by stipulation (DBS) and the matter was adjourned until June 8, 2015 for any necessary hearings and trial. On June 8, 2015, the People indicated that they were not ready for trial because the assigned assistant district attorney was actually engaged on trial in Trial Part 2 and requested a further seven day adjournment. Thereafter, the matter was adjourned until July 28, 2015, and on that date, the defendant served and filed the instant motion to dismiss on speedy trial grounds pursuant to CPL § 30.30(1)(b) and the court adjourned the case until October 1, 2015 for the court's decision.
DISMISSAL PURSUANT TO CPL § 30.30(1)(b)
Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument. People v Walton, 165 Misc 2d 672, 674 (Crim Ct, Richmond County 1995). As discussed above, the defendant is charged with Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), both class A misdemeanors punishable by a sentence of imprisonment not to exceed one year. PL § 70.15(1). Where, as here, a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, a speedy trial motion must be granted where the People are not ready for trial within 90 days of commencement of the criminal action. CPL § 30.30(1)(b).
The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v Santos, 68 NY2d 859, 861 (1986). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand the motion to dismiss. Id.
The People cannot be ready for trial until they have converted a misdemeanor complaint into an information. People v Caussade, 162 AD2d 4, 8 (2d Dept 1990). CPL § 100.40(1) provides that pursuant to CPL § 100.15 an information is sufficient on its face when the allegations provide reasonable cause to believe that the defendant committed the offense charged, and when the non-hearsay allegations establish, if true, every element of the offense charged and the defendant's commission thereof. In order for a misdemeanor complaint to be converted into an information, the factual portion of the instrument must contain "non-hearsay allegations that establish, if true, every element of the crime charged and defendant's commission thereof." CPL § 100.40(1)(c); People v. Alejandro, 70 NY2d 133 (1987).
In the case before the court, the defendant argues that the People were required to serve him and file with the court both the supporting deposition of Tawona Nicholas and the supporting disposition of Jermaine Miller in order to fully convert the charges of Petit Larceny and Criminal Possession of Stolen Property. Inasmuch as those supporting depositions were neither served on defense counsel nor filed with the court until April 17, 2015, the defendant argues that the time period between January 21, 2015, the day of the defendant's arraignment, and April 17, 2015, the day that the supporting deposition of Jermaine Miller was served and filed, is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). In the alternative, the defendant argues that if the supporting deposition of Jermaine Miller was not necessary to convert the misdemeanor complaint into an information, the People needed to file a superceding information to remove all hearsay allegations of the accusatory instrument and because the People have not filed a superceding information, the People have never been ready for trial. The court simply does not agree.
PETIT LARCENY - CONVERSION
A person is guilty of Petit Larceny (PL § 155.25) "when he steals property." For the charge of Petit Larceny to be facially sufficient, the accusatory instrument must contain facts that (i) the defendant stole property and (ii) that the property belonged to someone else. Here, the factual portion of the accusatory instrument served at arraignments provided that (i) Police Officer Stacey Ellis reviewed surveillance footage and observed the defendant take a cellphone from Tawona Nicholas, place the cellphone in the defendant's bag, and leave the location, and (ii) Officer Ellis had been informed by Tawona Nicholas that Tawona Nicholas is the custodian of that cellphone and that the defendant had neither permission nor authority to take, use, or otherwise exercise dominion or control over the cellphone. The accusatory instrument was signed under penalties of perjury by Officer Ellis. That is, and for the avoidance of doubt, that the accusatory instrument contained non-hearsay allegations that the defendant took a cellphone from Tawona Nicholas [FN1] . However, the accusatory instrument also contained hearsay allegations that [*3]the cellphone belonged to someone other than the defendant — i.e., Tawona Nicholas. Therefore, in order to convert the charge of Petit Larceny (PL § 155.25), the People were required to serve and file the supporting deposition of Tawona Nicholas corroborating that the cellphone was not the defendant's cellphone and that the defendant did not have permission or authority to use the cellphone which the defendant took from Tawona Nicholas satisfying that obligation. The People served and filed a SOR and the supporting deposition of Tawona Nicholas off-calendar on March 27, 2015 which supporting deposition fully converted the charge of Petit Larceny (PL § 155.25). Although the accusatory instrument still contained the hearsay allegations of Jermaine Miller, (i.e., that (i) Jermaine Miller is employed as a security guard at the location, (ii) the video surveillance footage is kept in the normal course of business and (iii) video surveillance footage accurately depicts the time and place of occurrence), these facts are not necessary to make out the prima facie case of Petit Larceny [FN2] . Accordingly, the supporting deposition of Jermaine Miller is not necessary to convert the charge of Petit Larceny and only the 65 day period between January 21, 2015 and March 27, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
CRIMINAL POSSESSION OF STOLEN PROPERTY IN THE FIFTH DEGREE - CONVERSION
A person is guilty of Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) "when he knowingly possesses stolen property, with the intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof." For the charge of Criminal Possession of Stolen Property in the Fifth Degree to be facially sufficient, the accusatory instrument must contain facts that (i) the defendant possessed stolen property and that (ii) the owner of said property did not give the defendant permission or authority to take, use or otherwise exercise dominion or control over said property. As discussed more fully above, the factual portion of the accusatory instrument provides non-hearsay allegations that the defendant took a cellphone from Tawona Nicholas, and hearsay allegations that the cellphone belonged to Tawona Nicholas. Therefore, in order to convert the charge of Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), the People needed to serve and file the supporting deposition of Tawona Nicholas corroborating that the cellphone was not the defendant's cellphone and that the defendant did not otherwise have permission or authority to possess the cellphone. This was accomplished off calendar on March 27, 2015 when the People served and filed a SOR and the supporting deposition of Tawona Nicholas as discussed above. With respect [*4]to this charge (as with Petit Larceny discussed above), the hearsay allegations of Jermaine Miller are also not necessary to make out the prima facie case of Criminal Possession of Stolen Property. Therefore, the People did not need the supporting deposition of Jermaine Miller to convert the charge of Criminal Possession of Stolen Property. Accordingly, only the 65 day period between January 21, 2015 and March 27, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
It is well settled that the People are entitled to a reasonable adjournment to prepare for hearings and trial. People v Greene, 223 AD2d 474 (1st Dept), appeal denied 88 NY2d 879 (1996); People v Hernandez, 268 AD2d 344 (1st Dept), lv denied 95 NY2d 253 (2000); People v Lucas, 25 Misc 3d 1213(A), (Crim Ct, Kings County 2009). Therefore, during the period between April 29, 2015, when the People served and filed DBS, and June 8, 2015, the day the matter was adjourned to for hearings and trial, no additional time was chargeable to the People for CPL § 30.30 purposes.
Post-readiness delays can be chargeable to the People only if they become unready. People v Anderson, 66 NY2d 529 (1985). Therefore, when a case is in a post-readiness posture, for CPL § 30.30 purposes, specific adjournments requested by the People are chargeable as non-excludable time, but adjournments that extend beyond the specific adjournment requested by the People are excluded time. People v Bruno, 300 AD2d 93, 95 (1st Dept), lv denied 100 NY2d 641 (2003); People v Dushain, 247 AD2d 234, 236 (1st Dept), appeal denied 91 NY2d 1007 (1998).
In this case, the People indicated on June 8, 2015 that they were not ready for trial because the assigned assistant district attorney was engaged on trial in Trial Part 2 and requested an additional seven day adjournment. However, the court adjourned the matter for 20 days (i.e., until July 28, 2015) for any necessary hearings and trial. For CPL § 30.30 purposes, only the seven day period actually requested by the People is chargeable as nonexcludable time. Bruno, 300 AD2d. Therefore, as of July 28, 2015, for CPL § 30.30 purposes, a total of 72 days were chargeable to the People as non-excludable time.
An adjournment for motion practice and the period during which the motion is "under consideration by the court" is excludable time. CPL § 30.30(4)(a); People v Stewart, 57 AD3d 1312, 1314 (3rd Dept 2008). The defendant served and filed the instant motion to dismiss on speedy trial grounds pursuant to CPL § 30.30(1)(b) on July 28, 2015. The period from July 28, 2015 until October 1, 2015, the date scheduled for this court's decision and for any necessary hearings and trial, is thus excludable time under CPL § 30.30. Stewart, 57 AD3d.
NO NEED TO FILE A SUPERCEDING INFORMATION
Finally, CPL § 100.40 requires that the accusatory instrument contain non-hearsay allegations which establish, if true, every element of the offense charged, but nowhere in the CPL is it a requirement that the People file a superceding information merely because the accusatory instrument contains hearsay. The requirement is simply that the People remove hearsay allegations from the accusatory instrument that are necessary to make out all necessary factual allegations which, if true, establish the pending charges. See CPL § 100.40(1); Alejandro, 70 NY2d. Therefore, the People did not need to file a superceding information removing the hearsay allegations of Jermaine Miller.
[*5]CONCLUSION
In sum, this court finds that the People are charged with 72 days of non-excludable time. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is denied.
The foregoing constitutes the decision and order of the court.
Dated: September 30, 2015
Brooklyn, New York
_____________________________
ANDREW BORROK
J.C.C. Footnotes
Footnote 1:Hearsay is an out of court statement (emphasis added) offered for the truth of the matter asserted. Jerome Prince, Richardson on Evidence § 8-101 (Farrell 11th ed 1995). Hearsay is problematic in that it is based on the credibility of someone other than the deponent who is not subject to cross examination. Personal observations of an informant based upon his or her review of a videotape does not constitute hearsay. Put another way, although the audio portion of a videotape may be hearsay requiring a specific hearsay exception to be admissible, the visual component is simply not hearsay. The deponent in this case (i.e., Officer Ellis) can be cross examined at trial as to what he personally observed on the videotape. See People v Ham, 43 Misc 3d 1227(A) (Crim Ct, Kings County 2014); People v Patten, 32 Misc 3d 440, 444 (City Court, Long Beach New York 2011) ("observations of a videotape are not hearsay"); Lambert, 2002 WL 1769931 at *3 ("one who personally observes the content of a videotape can give sworn testimony about his observations without violating the hearsay rule"); People v West, 41 Misc 3d 542 (Crim Ct, Bronx County 2013) (allegations in the supporting deposition that complainant saw the defendant take $100.00 from the register were sufficient where those statements were based upon deponent's review of a videotape); People v Giarraputo 37 Misc 3d 486, 487 (Crim Ct, Richmond County 2012) ("it is axiomatic that personal observations of a condition, event, incident or tangible item made by a witness are not hearsay").
Footnote 2:To require otherwise would require legislative enactment.
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