Matter of R.D. (C.L.)

[*1] Matter of R.D. (C.L.) 2017 NY Slip Op 27437 Decided on December 12, 2017 Family Court, New York County Goldstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 12, 2017
Family Court, New York County

In the Matter of R.D. and N.D., Children Under the Age of Eighteen Years Alleged to be Neglected by C.L. and C.D., Respondents.



NN 02246-7/17



APPEARANCES:

Morgan Molinoff, Esq.

Attorney for Petitioner

Administration for Children's Services

150 William Street, 5th Floor

New York, NY 10038

Tenisha Cummings, Esq.

Attorney for Mother C. L.

Neighborhood Defender Service of Harlem

317 Lennox Avenue, 10th Floor

New York, NY 10027

Norah Rexer, Esq.

Attorney for Father C. D.

Center for Family Representation

40 Worth Street

New York, NY 10013

Natalie Albert, Esq.

Attorney for the Subject Children

The Legal Aid Society

60 Lafayette Street

New York NY 10013
Carol Goldstein, J.

In the instant motion to reargue an evidentiary ruling in a neglect trial wherein the court admitted into evidence incriminating text messages found on the mother's cell phone, the mother argues that a proper foundation was not laid for the authentication of those text messages. The court grants the motion to reargue, but on reargument adheres to its original ruling. The court finds that there is a flexible standard for the authentication of electronic evidence and that the foundational evidence presented at trial established the genuineness of the text messages in question and they were thus properly admitted (See People v Price, 29 NY3d 472, 476 [2017]; People v McGee (49 NY2d 48, 59 [1979]).

Evidentiary Ruling at Trial

On September 25, 2017, in the course of a neglect trial where respondent mother, C. L., was accused of engaging in acts of prostitution, while the two subject children R. D. (born November 13, 2012) and N. D. (born June 4, 2014) were present, petitioner Administration for Children's Services sought to enter into evidence a screen shot of text messages found on the mother's cell phone. These text messages involve a conversation between the mother and an unknown individual wherein the mother agreed to engage in sex for money. The messages also suggest that the subject children would be in the home when the sexual activity was to take place.In an attempt to lay a proper foundation for the screen shot to be admitted, petitioner called the father, C. D., as a witness. The father, although also a respondent in the neglect case, faced different allegations. The father testified as follows: He did not live with the mother but, prior to the commencement of the neglect case, he and the mother had a good relationship. Sometime during the week of January 19, 2017, he went to the mother's home to visit his two daughters, the subject children. The mother's cell phone rang and the mother asked him "to give the phone to her." The father picked up the phone to hand it to the mother and saw text messages "that [he] didn't like." The father testified that the messages were "explicit" and indicated that the mother "was having interactions with guys." The father asserted that he was familiar with the mother's cell phone, which is a white LG, and that he had observed the mother use the cell phone often. The father knows the mother's cell phone number. The cell phone was password protected and the father knows the password because the mother gave it to him.

Petitioner showed the father a screen shot of text messages and asked if these were the text messages that he saw on the mother's cell phone. The father stated that he did not take the picture, but that the screen shot was a "fair and accurate representation" of the text messages he observed on the mother's cell phone. One message stated, "I charge a hundred for sex" and another message stated, "I am heading to pick up my oldest." Petitioner moved the screen shot into evidence.

Counsel for the mother objected, asserting that a proper foundation was not laid because there was no information from the phone company that the message came from her client's phone and that since the father had the mother's password, he could have "added information himself." Counsel for the father also objected, contending that the message would have to be authenticated by the recipient of the message testifying that he or she recognized the number that the message came from.

In response, petitioner stated that she was seeking to put the messages in evidence to establish that the mother was "prostituting herself out of the home in front of the children." She asserted that a foundation was established because the father was "very familiar with the mother's [*2]phone, he has seen her use it, he knows the password, he knows the number and this is an accurate representation." The attorney for the children (AFC) concurred and stated that a proper foundation was laid which established to whom the phone belonged and that it is not necessary "to go to the phone company for every item that comes off of a phone when it's a screen shot taken."

The court admitted the statements, "I charge a hundred for sex" and "I am heading to pick up my oldest" as statements against the mother's interest. The first statement indicates that the mother planned to engage in an act of prostitution and the second statement suggests that the children would be present during this paid sexual encounter. There were other messages on the screen shot, but they were not admitted because they were hearsay statements that did not come under any hearsay exception. The court ruled that there is no specific requirement that because evidence comes from a cell phone, it has to be authenticated in "any particular way." The court found that the screen shot was authenticated by the father's testimony that he knows the mother's cell phone and the cell phone number and that he saw the messages on that phone.

Motion to Reargue the Evidentiary Ruling

On October 16, 2017, the mother's attorney filed the instant motion pursuant to §CPLR 2221(a) and FCA §1061, seeking reargument of the court's decision to admit evidence from the text message screen shot. In her motion, the mother claims that the court overlooked or misapprehended the law regarding the admission of this evidence.

The mother claims that text messages on a screen shot may be admitted into evidence only if they are authenticated in the same manner as a tape recorded conversation. The mother argues that text messages are equivalent to tape recorded voice conversations and according to People v Ely (68 NY2d 520 [1986]), tape recorded conversations must be authenticated by clear and convincing evidence and may be authenticated in only one of four ways: 1) a participant testifies that the recording is accurate and complete; 2) a witness to the conversation or to the recording testifies to its accuracy; 3) there is testimony by a participant in the conversation together with proof by an expert that the tapes were not altered; or 4) the proponent of the evidence establishes a chain of custody of the tape recording from the time of its making until its production in court. In support of her argument that Ely applies to text messages, the mother cited People v Agudelo (96 AD3d 611 [1st Dept. 2012], lv den 20 NY3d 1095 [2013]) wherein the court referred to Ely in holding that "cut and pasted" text messages could be authenticated by a participant in the conversation.

The mother argues that since the father was not a participant or a contemporaneous witness to the text conversation, he could not testify to its accuracy and authenticity. She further argues that the screen shot did not contain the mother's screen name or her phone number.

Finally, the mother argues that People v Price (29 NY3d 472 [2017]), a recent Court of Appeals case, sets forth an additional authentication requirement for electronic evidence. According to the mother, the proponent of an electronically recorded conversation must establish that the tool that generated the conversation (in this case the cell phone) is "attributable and controlled by a certain person," citing Price at 478. The mother argues that there was insufficient evidence that the cell phone was in the mother's possession when the text messages were generated.

On November 3, 2017, petitioner filed response papers arguing that the text messages were properly admitted. Petitioner contends that electronically stored evidence may be authenticated by circumstantial evidence and asserts that "the elements required to establish authenticity 'may differ according to the nature of the evidence sought to be admitted'," citing People v Clevenstine (68 AD3d 1448, 1450 [3d Dept. 2009], lv den 14 NY3d 799 [2010])) quoting from People v McGee (49 NY2d 48, 59 [1979]). Petitioner further asserts that Ely, a case involving tape recordings, is not the "most appropriate" authority on the issue of authenticating the electronic evidence presented in the instant case.

Petitioner asserts that the authenticity of electronically stored evidence may be established by evidence sufficient to support a claim that the evidence is what the text proponent claims it to be, citing People v Moye (51 Misc 3d 1216A [Sup. Ct. Queens Co. 2016]); US v Safavian (435 F. Supp. 2d 36 [DDC 2006]) and US v Tin Yat Chen (371 F3d 31,38 [2nd Cir. 2004]). Petitioner contends that contrary to what the mother states, People v Price does not adopt a specific test for the admission of electronic evidence.

Petitioner asserts that the screen shot in the instant case was authenticated by the father, who testified that the it was a fair and accurate representation of how the text messages appeared on the mother's cell phone. Petitioner contends that the screen shot is also authenticated by distinctive characteristics of the messages on the screen shot, indicating that they were authored by the mother. These distinctive characteristics included the fact that the mother has two children, based on her reference in the text to picking up her "oldest," and that she lives on the west side of Manhattan, based on her answer "West" when asked if she was "on the east or west side."[FN1]

Petitioner further asserts that the father testified to "several identifying factors" that indicate that the cell phone belonged to the mother and that the text messages were sent by her. These include the fact that the mother handed the father the phone,[FN2] and the fact that the father was familiar with the make, model and color of the mother's phone. Moreover, the phone was password protected and therefore "not just anyone" could access the phone and send texts from that phone.

In a response dated November 3, 2017, the AFC also contends that a proper foundation was laid for the admission of the text messages in the screen shot. The AFC asserts that the father had visited the mother's home many times to see his daughters and was familiar with the mother's cell phone, a white LG, and had often seen the mother use the phone. The mother had given the father the phone number and the password. Additionally, when the mother's phone rang, the mother had asked the father to hand her the phone. It was then that he observed the text [*3]messages which were on the screen shot.

The AFC emphasizes that People v Ely involves tape recorded conversations, not text messages. According to Ely, the special rules pertaining to the authentication of tape recorded conversations are based upon the "ease with which voices may be transposed on tapes and the difficulty . . .of detecting such a change" (68 NY2d 528). The AFC therefore contends that these rules are inapplicable in the instant case, which involves text messages.

Decision on Motion to Reargue

"A motion for leave to reargue 'shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matter of fact not included on the prior motion'." Ahmed v Pannone (116 AD3d 802, 805 [2d Dept. 2014] lv dism 25NY3d 964 [2015] rearg den 26 NY3d 934 [2015], citing Grimm v Bailey, 105 AD3d 703 [2nd Dept. 2013] quoting CPLR §2221[d][2]).In the instant case, the court grants the motion to reargue to the extent that the court has considered the case law and arguments made by petitioner as well as those made by the other parties in response papers. However, after consideration of the arguments and case law presented, the court adheres to its original ruling and holds that a proper foundation was laid for the admission of the text messages in question.

The basic formulation concerning the authentication of real evidence sought to be introduced was set forth by the Court of Appeals in People v McGee (49 NY2d 48, 59) as follows: "Accuracy and authenticity is established by proof that the offered evidence is genuine and there has been no tampering with it" and "[t]he foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted.".

Just recently, the Court of Appeals has reiterated this standard in People v Price, at 476. Significantly, as correctly pointed out by petitioner and the AFC, the Price court did not set forth a specific standard for the authentication of electronic evidence. This was made absolutely clear in footnote 3, wherein the court responded to the contention expressed in the concurring opinion that the court should have set forth specific rules for the authentication of electronic evidence obtained from social media. The court stated:

We disagree with the assertions of our concurring colleagues that we should not decide this appeal without conclusively adopting a general and comprehensive test for authentication to be applied. . . . In our view, it is more prudent to proceed with caution in a new and unsettled area of law such as this. We prefer to allow the law to develop with input from the courts below. . .

People v Ely, cited by petitioner, a case that predates Price, applies specifically to tape recorded evidence, and does not set forth the only available methods for authenticating electronic evidence. Rather, courts have permitted the authentication of electronic evidence in a variety of ways as demonstrated by the following cases: People v Green (107 AD3d 915 [2nd Dept. 2013] lv den 22 NY3d 1088 [2013]) (messages authenticated where screen shots were identified and messages made no sense unless sent by defendant); People v Franzese (154 AD3d 706 [2nd Dept. 2017] (electronic video authenticated where identified by officer who viewed it online shortly after its posting and by distinctive characteristics of the video); People v Hughes (114 AD3d 1021 [3rd Dept. 2014] lv den 23 NY3d 1038 [2014]) (photographs of text messages sent from defendant's cell phone properly authenticated by testimony of Verizon employee as to telephone [*4]numbers of sender and recipient and victim's testimony that those numbers belonged to herself and defendant); People v Agudelo (96 AD3d 611) (print-out of text messages taken from victim's phone authenticated by testimony of victim that print out accurately represented exchange of messages); People v Clevenstine (68 AD3d 1448 [3d Dept. 2009] lv den 14 NY3d 799 [2010]) (instant messages authenticated by testimony of the victims that they texted with defendant, testimony by investigator that texts were retrieved from the victims' computer and testimony of MySpace compliance officer that messages were exchanged between accounts set up by defendant and the victims); (People v Moye (51 Misc 3d 1216[A]) (instant messages authenticated by witness who identified defendant's screen name and picture, and contents of messages indicated that sender had direct knowledge of the crime).

As can be seen from the above cases, courts have been flexible as to the manner of authenticating electronic evidence. Often the authentication comes from a combination of sources. Also, the evidence is frequently authenticated circumstantially, such as through the distinctive nature of the contents of the messages.

In the instant case, the authenticity of the screen shot, namely that is an accurate copy of text messages sent by the mother to an unknown party agreeing to engage in sex for money was established by the following evidence: First, the father testified that he observed the incriminating messages on a cell phone and that the screen shot, although he did not personally take it, was an accurate representation of the messages that he saw on the cell phone. Second, the father testified that the cell phone belonged to the mother based on his familiarity with the make, model and color of the cell phone, that he had seen the mother use the cell phone many times, and that while he was visiting his daughters, he picked up the cell phone after it rang and the mother asked him to hand it to her. Third, the father' testified that the cell phone was password protected, making it unlikely that someone, other than the mother, was able to send the messages sought to be introduced.

Finally, with respect to authentication based on the contents of the text messages, the messages in the screen shot indicate that the mother has more than one child as shown by her reference to picking up "her oldest" and that the mother lives on the west side of Manhattan as shown by her answer "West" when the sender asked if she was "on the east or west side." The mother does in fact have two children and resides on the west side of Manhattan. While these two statements are not needed to provide a foundation for the texts at issue and would certainly not be sufficient alone to authenticate the text messages, they provide some additional indicia of authenticity.

In conclusion, after considering all of the arguments presented, for the reasons stated above, the court adheres to its original ruling and finds that a sufficient foundation was laid for the authentication of the two text messages taken from the mother's cell phone.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

ENTER:

___________________________

Carol Goldstein, FCJ

Dated: December 12, 2017

New York, NY Footnotes

Footnote 1:Petitioner also cites to messages from other screen shots that were purportedly take from the same cell phone. One contains a picture of the mother's kitchen and another contains the number of the mother's building. These other screen shots were not admitted in evidence or referred to during the evidentiary argument at trial. Accordingly, they will not be considered in deciding the instant motion to reargue.

Footnote 2:Actually, the father testified that the mother asked him to hand her the cell phone, not that the mother handed him the phone.