AD2 order dated April 15, 2015, affirming judgment of conviction. Decision below: 127 AD3d 995, 4 NYS3d 924. Fahey, J., granted leave July 28, 2015.

ISSUES PRESENTED: (1) Admitting into evidence a photograph posted on the defendant’s web page four months prior to the robbery, showing him holding a gun similar to the one used in the robbery, even though the People did not establish that the photo was genuine, and the complainant did not confirm that the gun in the photo was the same one used in the robbery. (2) Sufficiency of the evidence as to ID. (Assigned counsel: Tammy Linn & Lynn W.L. Fahey, 111 John St., 9th Floor, NYC 10038.)

Issue before the Court: What must the People do to lay a sufficient foundation at trial to authenticate social media evidence, in this case a photograph printed off an internet page allegedly belonging to the defendant?

 

Held: The Court doesn’t answer that question, leaving it for another day, since no matter what the requisite authentication, it wasn’t done here.  Judges Rivera and Garcia concurred, agreeing with the result, but saying that the Court should have set out the authentication test (and they proposed one).  A new trial was ordered.

 

CAL Observes: In this case, the People were allowed to introduce into evidence a photo which a detective testified she found on, and printed off of, an internet social media web  (“Blackplanet.com”) page that she believed belonged to the defendant.  It appeared to show (someone looking like) the defendant holding a firearm.  There was no other testimony authenticating the photo or showing that the web page belonged to the defendant.  The majority declined to set out any specific set of authentication requirements for web page photos, since, in this case, there was insufficient evidence of the defendant’s connection to the web site or that he exercised exclusive dominion and control over its contents.  The Rivera/Garcia concurrence set out what they believed to be the authentication requirements: (1) proof that the print out was an accurate representation of the web page, and (2) that the web page belonged to the defendant–the evidence missing here.  This concurrence should be a useful tool for litigants going forward as it may end up being adopted by the full Court when the time comes.