IN RE: Mustafa F. (2025)

Procedural History

The Respondent, Mustafa F., now age 18, is before the Court on a delinquency petition charging him with Attempted Assault in the 1st Degree pursuant to Penal Law ("PL") 110/120.10(2) and other counts related to an incident that occurred at Pitkin Avenue and Watkins Street Brooklyn, NY on September 13, 2024 at approximately 11:40pm.

The Presentment Agency ("Assistant Corporation Counsel" or "ACC") provided notice of its intent to introduce identification testimony at trial from Police Officer DeBessy specifically that she could identify the Respondent as the perpetrator of the assault from the surveillance video of the incident based on her prior interaction with the Respondent when she arrested him on back on December 12, 2023. The Attorney for the Child ("AFC") filed a Motion for a hearing pursuant to People v Mosely, 41 NY3d 640 [2024]. This Court granted a hearing on that motion, on consent of the ACC, which was held on October 1st and 22nd, 2025.

Evidence at Hearing

Police Officer DeBessy was the sole live witness at this hearing. The Presentment Agency introduced a stipulation between counsel that, had Detective Brett Woodard testified, he would have stated that, on September 14, 2024, he downloaded multiple surveillance videos from cameras outside of a deli at 1770 Pitkin Ave. that were taken on September 13th between 11:35 and 11:45 pm (PA's Exhibit 1A), and could attest to the authenticity of the images he downloaded. The surveillance video itself was introduced into evidence (PA's Exhibit 1B) as well as still photos (PA's Ex. 2A-C), and the body camera footage from the Respondent's arrest by Officer DeBessy from December 12, 2023 (PA's Exhibit 3). The Respondent rested without calling any witnesses but introduced still photographs from the surveillance video (R's Exhibits A1-5), a photograph of the Respondent after his arrest on December 12, 2023 which shows Mustafa's height as over 6 feet (R's Exhibit B), and the medical records of the complainant from Brookdale Hospital which show his height as 5'8''(R's Exhibit C).

Police Officer DeBessy testified that, on the evening of October 9, 2024, she was working in the 90th Precinct and received an e-mail from a Detective at the 73rd Precinct with still images of a male and asking if she could recognize the person pictured and then later if he could come to her precinct to review video footage with her. After viewing the full video, Officer DeBessy stated that she recognized the male individual as Mustafa F. who she had interacted with on December 12, 2023 during an arrest. The Officer testified that she could identify Mustafa, even though the person in the video was wearing a "sheisty" covering his nose and mouth, based on his "very distinct eyebrows" which were "arched" and very light, as well as from his eyes and covered eyelids. According to Officer DeBessy, she remembered this arrest even though it was 10 months earlier, because it was a juvenile arrest for a firearm which was not common, and since Mustafa had to remain in the juvenile room during his arrest, she observed him for an unusually long period of time. The arrest occurred at 3 pm after school when it was light outside. Although Mustafa was wearing a black surgical mask, it was removed after his arrest and therefore, Officer DeBessy was able to view Mustafa's full face before putting him in the police car which she then drove to the precinct. Upon arrival, Mustafa was brought to the desk at the precinct and Officer DeBessy questioned him about "pedigree" information and did paperwork which took approximately 2 minutes. Mustafa was then taken to the juvenile room by other officers and Officer DeBessy sat across from Mustafa at a table approximately 6 feet away and asked for contact information for his mother which took approximately 3 minutes. The Officer then left the room to take the gun to the evidence collection unit but she saw Mustafa again about 1 hour later and informed him that his mother was coming. According to the Officer, she also took Mustafa to be photographed which took approximately 4 minutes and periodically checked on Mustafa in the juvenile room that afternoon and spent about 20 minutes with him then.

The only other contact Officer DeBessy testified she had with Mustafa was in passing on the street on one occasion but the Officer was not able to remember whether that occurred before or after his arrest for the instant matter in October of 2024. Officer DeBessy estimated that Mustafa was approximately 5'10" tall.

Decision

The Presentment Agency seeks to elicit from Officer DeBessy lay, non-eyewitness identification testimony. Lay opinion testimony is generally not permissible because of the danger that such testimony will usurp the fact-finder's function. Generally, "lay witnesses must testify only as to the facts, and not to their opinions and conclusions drawn from the facts," as that is the province of the fact-finder. People v Tyme, 222 AD3d 783, 784 [2d Dept. 2023]. Additionally, "trial testimony by a law enforcement officer may pose additional concerns by drawing attention to a defendant's prior interactions with the police." People v. Mosely, 41 NY3d 640, 647 [2024]. Pursuant to the Court of Appeals decision in Mosely, this testimony is only permissible if the proffered testimony serves to aid the fact-finder in making an independent assessment regarding whether the [person in the surveillance footage] was indeed the defendant." Id. (internal citations omitted). The answer to this question rests on whether there is "some basis for concluding that the witness is more likely to correctly identify the defendant [or respondent] from the photograph [or video] than the jury [or judge]." Id. (internal citations omitted). The Court of Appeals identified three factors to be considered as part of this analysis:

1) Whether the witness has had sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful;

2) Whether the fact-finder needs the witness's assistance;

3) The quality of the surveillance footage and the extent to which the subject is clearly captured on the frame. Id.

Turning first to the question of "sufficient" prior contact, the Mosely Court suggested courts consider: "whether the witness's familiarity spanned an extended period of time and variety of circumstances," whether the witness was familiar with the Respondent's appearance at the time of the instant crime, and the witnesses familiarity with the Respondent's manner of dress on the day the surveillance footage was taken. Finally, courts should consider "whether the witness references a specific trait the [respondent] has (such as a distinctive gait, scar or tattoo) and importantly, whether they identify that trait in the surveillance footage." Id. At 649.

Here, Officer DeBessy had only one other contact that she could affirm was before her viewing of the surveillance video, and that was her arrest of Mustafa on December 12, 2023. This single contact was 10 months before she viewed the video and, although the precinct setting was well-lit, the arrest processing did not involve an extended period of face-to-face contact with Mustafa. Based on the Officer's time estimates, her various face-to-face interactions with Mustafa likely totaled under 45 minutes. There was no evidence presented that Officer DeBessy was familiar with Mustafa's appearance or manner of dress around the time of the surveillance video in September 2024. Officer DeBessy did identify what she described as unique traits of Mustafa's eyes and eyebrows as well as his light skin. Given that the perpetrator in the surveillance video is wearing a "sheisty," his eyes and eyebrows are visible, although the rest of his face is not. Notably, the Officer's recollection of Mustafa's height as being 5'10" is inconsistent with the clear measurement of Mustafa as being over 6 feet in the arrest photograph.

Taken together, the evidence does not establish that Officer DeBessy had "sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful." Furthermore, the other factors that Mosely requires this Court to consider support preclusion of the lay witness's identification in this case. Regarding the issue of whether this Court, as fact-finder, needs the witness's assistance, there is no evidence that Mustafa's appearance has changed between the time of the surveillance footage and now. Arguably, the person in the surveillance footage is "disguised" in that the bottom half of his face and top of his head is covered by the "sheisty;" however, this limits the police officer's ability to identify him to the same extent as it would this Court. Finally, the quality of the surveillance video is quite good and enables the Court to make its own assessment as to whether it constitutes evidence that Mustafa is the perpetrator of this crime. This Court has had the opportunity to see, and engage with, Mustafa in numerous court appearances over the course of the past 8 months since this case was filed and those observations have amounted to substantially more than the 45 minutes Officer DeBessy had which is now almost 2 years ago. Thus, there is no basis here to conclude that Officer DeBessy would be more likely to correctly determine whether the Respondent is pictured in the surveillance video than would this Court. ee People v Williams, 238 AD3d 1076, 1077 (2d Dept. 2025) (trial court improvidently exercised its discretion in allowing a police detective to identify the defendant as the individual in the video).

Therefore, for the reasons stated, the Presentment Agency has failed to meet its burden to establish that Officer DeBessy's testimony would "both be helpful and necessary" to this Court in assessing the identification proof at trial and the Officer's testimony is precluded pursuant to People v Mosely. Id. at 650.

Date: November 18, 2025

ENTER:

The Hon. Jacqueline B. Deane, JFC

Jacqueline B. Deane, J.