PEOPLE v. OGANDO (2019)

Defendant, Juliette Ogando, is charged with one count of Petit Larceny (Penal Law § 155.25). It is alleged that defendant took a package addressed to the complainant from where it had been left in the lobby of a building. Defendant moves for an order finding that the accusatory instrument has not been converted to an information (see CPL 100.15[3]; CPL 100.40[1]).

Procedural History

The factual part of the accusatory instrument alleges, in relevant part, that N.Y.P.D. Detective Kevin Caminito

“observed, via video surveillance, a Hispanic female, whom [he] later learned to be the defendant, enter the lobby of the building at [address specified], take a package, and then leave the lobby area of the building without returning.”

The factual part of the instrument further alleges that defendant stated to Detective Caminito that she was “sorry for what [she] did,” and that Detective Caminito was informed by the owner of the package that defendant did not have permission to take the package. Following defendant's arraignment, the People filed a supporting deposition of the package's owner stating that the information attributed to her by Detective Caminito was true based upon her personal knowledge.

Defendant later filed the instant motion. She asserts that Detective Caminito's statements regarding what he observed in his review of unauthenticated video surveillance footage are based on hearsay. Accordingly, she contends, the accusatory instrument has not been properly converted to an information and thus remains a misdemeanor complaint. The People oppose defendant's motion, contending that the surveillance video is not hearsay and that the complainant's supporting deposition converted the complaint to an information pursuant to CPL 100.40.

Legal Standards

An information must contain factual allegations providing reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information, and non-hearsay factual allegations establishing, if true, that the defendant committed every element of the offense charged (see CPL 100.40[1][b]-[c]). This latter requirement — the “prima facie requirement” — is “ ‘is not the same as the burden of proof beyond a reasonable doubt required at trial,’ nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” (People v. Smalls, 26 N.Y.3d 1064, 1066, 23 N.Y.S.3d 134, 44 N.E.3d 209 [2015], quoting People v. Kalin, 12 N.Y.3d 225, 230, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] [citation omitted], quoting People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999]).

Here, the issue is whether the surveillance video content upon which Detective Caminito relied constitutes hearsay. Hearsay is generally defined as an out-of-court statement made by a declarant and offered for the truth of the matter asserted (see Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 [2001]; People v. Buie, 86 N.Y.2d 501, 505, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995]; People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226 [1987]; People v. Caviness, 38 N.Y.2d 227, 230, 379 N.Y.S.2d 695, 342 N.E.2d 496 [1975]; People v. Kass, 59 A.D.3d 77, 86, 874 N.Y.S.2d 475 [2d Dept. 2008]; People v. Egan, 78 A.D.2d 34, 35, 434 N.Y.S.2d 55 [4th Dept. 1980]; see generally Guide to NY Evid rule 8.00, Definition of Hearsay, https://www.nycourts.gov/judges/evidence/8-HEARSAY/8.00_DEFINITION OF HEARSAY.pdf).¹ A “statement” may be oral, written, or non-verbal, provided that the verbal or non-verbal conduct is intended as an assertion (see People v. Kass, 59 A.D.3d at 86, 874 N.Y.S.2d 475; e.g. People v. Nieves, 67 N.Y.2d 125, 131 n. 1, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986] [witness's act of pointing at the defendant when she was asked who had stabbed her was an out-of-court statement offered for its truth, and was thus hearsay]; People v. Esteves, 152 A.D.2d 406, 412, 549 N.Y.S.2d 30 [2d Dept. 1989] [detective showed hospitalized victim a photograph of the defendant and asked whether the defendant was the person who shot him; victim's shaking his head was hearsay when offered to prove that the defendant was not the person who had shot him]; Guide to NY Evid rule 8.00, Definition of Hearsay, https://www.nycourts.gov/judges/evidence/8-HEARSAY/8.00_DEFINITION OF HEARSAY.pdf Whatever form a statement takes, it must have “a content that can be characterized as true or false” (People v. Kass, 59 A.D.3d at 86, 874 N.Y.S.2d 475) in order to be offered for the “truth of the matter asserted” (Nucci v. Proper, 95 N.Y.2d at 602, 721 N.Y.S.2d 593, 744 N.E.2d 128). Put otherwise, a statement that has no true/false content cannot constitute hearsay because it cannot be offered for the truth of its content.

A surveillance video is not, in itself, a “statement” with a true/false content (see Hairston v. Metro-North Commuter R.R., 6 Misc. 3d 399, 400, 786 N.Y.S.2d 890 [Sup. Ct. N.Y. County 2004] [hearsay objection overruled regarding videotape with no sound other than static, because, in the video, the plaintiff “did not commit any nonverbal acts that constituted hearsay”] ). A surveillance video, however, may contain hearsay if a statement contained in it has a true/false value (cf. id.).

Here, Detective Caminito, in his sworn allegations regarding his viewing of the surveillance video said that he observed the defendant enter the building lobby, take a package, and leave. Nothing in the video's content that Detective Caminito relied upon amounted to a statement with a true/false value. Accordingly, Detective Caminito, insofar as he described what he saw on the surveillance video, was not relying on hearsay (see People v. Stultz, 284 A.D.2d 350, 351, 726 N.Y.S.2d 437 [2d Dept. 2001] [detective's testimony that he learned the telephone number of a certain telephone by dialing 953 and listening to the recorded response was properly admitted; the evidence of the telephone number was not hearsay “since it was not the repetition of a human observation”] ); People v. Clyburn, 56 Misc. 3d 1204(A), 2017 WL 2803222 [Crim. Ct. N.Y. County 2017] [surveillance video depicting incident was not hearsay and could be relied upon by officer who viewed it later]; People v. Hossain, 50 Misc. 3d 610, 616, 23 N.Y.S.3d 802 [Crim. Ct. N.Y. County 2015] [same] ).

The truth or falsity of a statement is distinct from the accuracy of real evidence that purports to be a depiction of some event or occurrence. Before that type of evidence — for example, a photograph or a videotape — may be admitted into evidence at trial, it must be authenticated to ensure that it depicts what it purports to depict (see Zegarelli v. Hughes, 3 N.Y.3d 64, 69, 781 N.Y.S.2d 488, 814 N.E.2d 795 [2004]; People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] [“a videotape may 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. Fondal, 154 A.D.2d 476, 477, 546 N.Y.S.2d 26 [2d Dept. 1989] [adequate foundation established for introduction of surveillance video that depicted crime]; People v. Weckworth, 55 Misc. 3d 1210(A), 2017 WL 1391130, *7 n. 4 [Crim. Ct. N.Y. County 2017]). Therefore, the foundational requirements for the admission of a video are analytically distinct from whether the video is offered for a hearsay purpose (see People v. Ham, 43 Misc 3d 1227[A], 2014 WL 2438434 [Crim. Ct. Kings County 2014]).

This Court finds the reasoning in People v. Allison, 21 Misc. 3d 1108(A), 2008 WL 4491495 (Dist. Ct. Nassau County 2008) and People v. Schell, 18 Misc. 3d 972, 849 N.Y.S.2d 882 (Crim. Ct. Richmond County 2008) unconvincing. The courts in those cases regarded surveillance videos of crimes as hearsay because they were not authenticated at the accusatory instrument stage. As already stated, however, videotapes that do not contain “statements” cannot contain hearsay, and foundational requirements for introducing evidence are distinct from hearsay analysis. The courts' conclusions in Allison and Schell that the viewing of a surveillance video after the events in question somehow render the contents of the video hearsay are not persuasive. The passage of time does not change the content of the surveillance video with respect to whether it has content that may be regarded as true or false. Non-hearsay does not become hearsay with the passage of time.

Conclusion

Detective Caminito's sworn assertions that he observed video surveillance in which defendant is depicted taking a package is not itself hearsay, and it does not rely on hearsay. Accordingly, the accusatory instrument, as supplemented by the complainant's supporting deposition, satisfies the non-hearsay prima facie requirement of CPL 100.40(1)(c); together, those documents constitute a misdemeanor information.

Any determinations regarding the surveillance video's authenticity and other foundational issues related to the video's admissibility may be addressed by the trial court.

For the reasons stated, it is

ORDERED that defendant's motion is DENIED.

FOOTNOTES

1.   A statement that is offered not to prove the truth of the matter asserted is not hearsay, or more precisely, is not offered for a hearsay purpose (see People v. Thomas, 4 N.Y.3d 143, 148, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005] [in prosecution for resisting arrest, an accusatory statement attributed to the complainant in the information was not hearsay because the statement was offered to prove that the police had reasonable cause to arrest the defendant, not to prove that the defendant committed a crime against the complainant]; People v. Ricco, 56 N.Y.2d 320, 328, 452 N.Y.S.2d 340, 437 N.E.2d 1097 [1982] [evidence as to what the defendant saw when he looked through a telescope when he was 12 years old was not offered to prove “that space ships were controlling behavior on earth with mysterious rays,” but to establish that, even as a boy, the defendant was “suffering from delusional thinking”] ).

Anne J. Swern, J.