In a decision limited to the facts of the case, the Court of Appeals reversed a robbery conviction because the People failed to sufficiently authenticate an internet image purportedly of defendant holding gun that was “similar” to the one he used in the robbery.

The photograph had been printed out by a police detective from the website “BlackPlanet.com”.  The photograph had been posted to a profile page several months before the robbery and showed an individual holding some cash and a gun.  The detective had found the photograph by searching defendant’s surname “Price” and, after scrolling through several pages of results containing approximately 50 internet profiles whose usernames incorporated the term “Price” into them, saw a public profile that contained several photographs of defendant with the username “Price_OneofKind.”  The public profile page contained no reference to defendant’s full name.  Although the detective testified that the profile page listed the purported user’s age and hometown, the detective did not testify as to whether any of that information matched defendant’s information, and none of the pages containing this information were introduced to connect defendant to the specific user of this website.

The robbery occurred while the victim was standing outside a milk delivery truck conducting milk deliveries with the driver who was inside the truck.  The delivery truck driver testified that he noticed that someone holding a gun about a foot away from the chest of the victim and observed that the victim exchanged words with the gunman and threw a handful of cash from his pocket to the ground.  The driver then saw the gunman’s accomplice gather the money and the two robbers flee. The truck driver did not see the gunman’s face and was unable to identify defendant at trial as either of the perpetrators.

The People then made an offer of proof regarding the print-out of the photograph from the internet, to wit, that the victim thought that the gun on the photograph was similar to the gun that the robber had pointed at him and the detective thought that the individual in the photograph looked like defendant.  The trial court admitted the photograph into evidence.

The victim testified to the circumstances of the robbery, and he identified defendant as the gunman. The victim described the firearm used in the robbery as a 9-millimeter automatic with a silver rectangular feature on the top of the barrel, but the victim admitted that he had no prior familiarity with firearms. When shown the gun in the bottom portion of the internet photograph, the victim testified that the gun looked “similar” to the gun used in the robbery, but he could not identify the gun in the photograph as the one held by the robber.

The detective then testified that the individual in the photograph holding the handgun “look[ed] like” defendant. The detective explained that she had printed the photograph from the internet website, and she asserted that the printout was a true and accurate depiction of the photograph she observed on the website. But the detective did not know who took the photograph, when it was taken, where it was taken, or under what circumstances it was taken. Nor did she know whether the photograph had been altered or was a genuine depiction of that which it appeared to depict.

During summations, the People urged the jury to conclude that the photograph was taken from an internet profile page belonging to defendant, and emphasized that the victim “recognized” the gun depicted in the photograph as the one held by the gunman. Following deliberations, the jury found defendant guilty of the counts of robbery asserted against him.

Upon defendant’s appeal, the Second Department affirmed the judgment of conviction (127 AD3d 995, 996 (2d Dept 2015)), holding that the People laid a proper foundation for admission of the photograph, that the photo was relevant to the issue of the defendant’s identity as the gunman, and the photo’s probative value outweighed any prejudicial effect”. The Court of Appeals granted defendant leave to appeal.

All six judges of the Court of Appeals voted to reverse the conviction and ordered a new trial, but they split four to two on the rationale.  Judge Stein writing for the majority (which included Judges DiFiore, Fahey, and Wilson) recited black-letter-law principals of authenticating photographs as evidence and pronounced that the People had failed to authenticate the photograph, but then (in footnote 3) limited the holding to the facts of this case because the Court was not prepared to enunciate a general test of admissibility of photographs obtained from social media websites:

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 and with a better understanding of the numerous factual variations that will undoubtedly be presented to the trial courts. Because we necessarily decide each case based on the facts presented therein, it would be premature to decide whether the People’s proffer would have been sufficient had the prosecution, hypothetically, established that the website was controlled by defendant. At this time, it is sufficient and appropriate for us to hold that, based on the proffer actually made, the photograph was not admissible.

In her concurring opinion which was joined by Judge Garcia, Judge Rivera chided the majority for failing to address head on the question of how to authenticate social media images – an evidentiary issue of growing concern given the proliferation and ubiquitousness of social media:

Contrary to the majority’s claim, when we decide an open question presented on appeal we do not act in haste (majority op at 10 n 3). Rather, we pronounce the law by which we reason an outcome. Given the pervasive use of social media, there is nothing premature about determining how law enforcement and prosecutors may use evidence obtained online

Judge Rivera states that the People had to satisfy two levels of authentication: (1) the print out was an accurate representation of the web page; and (2) that the page was defendant’s, meaning he had dominion and control over the page allowing him to post on it.  In her view, the People proved, through the detective’s testimony, that the printout was an accurate representation of the digital image viewed on the website. But the People failed to establish that the web page was defendant’s, either by direct or circumstantial evidence or with proof establishing reasonable inferential linkages that ordinarily supply foundational prerequisites.  The “tie-in effort” between the testimony relied on by the People and the purpose for which the printout was submitted was too tenuous and amorphous. In other words, the People did not submit proof by which a reasonable jury could conclude that the printout was an accurate representation of defendant’s profile page.   Judge Rivera therefore agreed with the majority’s conclusion that authentication could not be accomplished solely by proof that defendant’s surname and picture appears on the profile page.

Judge Rivera criticized the People for failing in their proffer to present the personal information posted on the web page which might have established the necessary link to defendant.  Other evidence arguably addressed the authentication of the web page, such as proof that the defendant posted or adopted the photograph, or knew of the photograph and allowed it to remain on the profile page without objection, but given the deficiency of the proof actually submitted, Judge Rivera agreed with the majority that the Court need not consider whether proof that the web page belonged to defendant could also establish that the image depicted was genuine.  Thus, since the People did not link defendant to the web page where the image was found, there was no need to consider on this appeal the requirement that there had been no tampering with the proffered evidence. And given the lack of adequate evidence connecting defendant to the web page, the Court had no reason to address the sufficiency of the victim’s identification of the gun.

People v Price, 2017 NY Slip Op 05174, CtApp 6-27-17

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