X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Defendant moves to renew and reargue her motion for the court to inspect the grand jury minutes and dismiss the indictment. The motion to renew and reargue is granted because this court was unaware that defendant apparently made a prior oral motion to another Justice that raised the same issues that defendant is seeking to raise in the present motion. The District Attorney does not dispute that defendant made such a prior oral motion. This court will, therefore, review this motion on the merits. Defendant is a federal correctional officer charged with criminally possessing a firearm (PL 265.03 [1] [b], [3]; 265.01 [1]; PL 265.01-B [1]). The charges are based on the allegation that defendant discharged a firearm on a Brooklyn street. To prove those charges at the grand jury, the District Attorney relied upon surveillance video depicting a person allegedly discharging a firearm. For the purpose of this motion, defendant does not dispute that she is the person depicted on the video (see Bonus affirmation in supp of mot at 4, n 2).1 The images on the video are the only evidence offered to prove that the item defendant possessed was an operable firearm. Defendant’s motion raises four claims. The first is that her occupation as a federal correctional officer entitles her to exemption from prosecution. The second is that the surveillance video was not properly authenticated at the grand jury. The third is that the video, even if authentic, is insufficient to establish that she possessed an operable firearm. The fourth is that a Bureau of Prisons Special Investigator Agent gave false testimony. This court addresses each claim below. Defendant argues first that she is exempt from prosecution under the Penal Law §265.20 exemption that applies to a person in the service of the United States and duly authorized by federal law to possess a firearm (see PL 265.20 [a] [1] [d]). In defendant’s view, she is authorized to possess a firearm under the Law Enforcement Officers Safety Act (LEOSA) (see 18 USC 926B). This federal law allows a “qualified law enforcement officer” who is carrying the necessary identification to possess a concealed firearm notwithstanding any state law to the contrary (18 USC 926B [a], [c], [d]). Under the LEOSA, a “qualified law enforcement officer” is “an employee of a governmental agency who — (1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice); (2) is authorized by the agency to carry a firearm; (3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers; (4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm; (5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and (6) is not prohibited by Federal law from receiving a firearm” (18 USC 926B [c]). Defendant’s argument that she is exempt from prosecution under Penal Law §265.20 (a) (1) (d) based on the LEOSA provides no basis to dismiss the indictment. The exemptions under Penal Law §265.20 “are in the nature of a defense” that “the defendant is required to raise…before the government is required to disprove it beyond a reasonable doubt” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, PL §265.20 Exemptions, Introduction [online version, last accessed November 29, 2021]). Indeed, the issue of whether the LEOSA applies in this case involves questions of fact that cannot be resolved on the current record. Defendant could have raised this defense at the grand jury by testifying or requesting the grand jury to cause designated persons to be called as witnesses (see CPL 190.50 [5] [a]; [6]), but evidently elected not to do so. In such a situation, the claimed exemption provides a defense to be raised and litigated at trial rather than a ground to dismiss the indictment (see People v. LaPierre, 189 AD3d 1813, 1816-1817 [3d Dept 2020]; People v. Washington, 209 AD2d 162, 163 [1st Dept 1994], aff’d 86 NY2d 853 [1995]).2 Defendant’s next claim is that the District Attorney failed to authentic the surveillance video at the grand jury. The District Attorney did not call the custodian of the video as a witness at the grand jury. Instead, the District Attorney sought to authenticate the video through the testimony of the police detective who obtained the video from the custodian. That detective’s testimony is summarized below. On May 4, 2020, Detective David Lambert of the 79th Precinct Detective Squad was assigned as lead detective to investigate a “shots fired job” that occurred on May 2, 2020, outside of 515 Lafayette Avenue in Brooklyn, NY On May 4, 2020, Lambert went to 511 Lafayette Avenue and met with the owner of the building. The owner was the custodian of the video surveillance system at the building. During the meeting with the building owner, Lambert “directed him to the date and time” of the shooting and “asked to view the cameras.” The owner “controlled” the video surveillance from an app on his cell phone, and Lambert viewed the video inside the building in the app on the cell phone. Lambert testified that the cameras appeared to be “recording contemporaneously with what was happening,” that the cameras were “recording the events as they were occurring,” and that “the camera system” was “working accurately.” After Lambert viewed the video, the owner “collected it on his cell phone and emailed it” to Lambert. The surveillance video was “placed on a disc” that Lambert viewed before appearing at the grand jury. Lambert testified that the video on the disc was the same video that he had viewed on the owner’s cell phone. He testified that the contents of the disc “fairly and accurately represent[ed]…the video surveillance clips that [he] watched on [the owner's] phone.” When the District Attorney played one of the two admitted surveillance videos at the grand jury, Lambert testified that the date on the video was correct but that the time stamp was about one hour behind. In the motion, defendant argues that the District Attorney did not establish a sufficient foundation for admitting the surveillance video. In defendant’s view, the video was “nothing more than hearsay and unverified based upon a lack of chain of custody” (Bonus reply affirmation at 7). She further argues that the video could not be admitted at the grand jury without testimony from the custodian of the video. The District Attorney responds that the surveillance video evidence “was legally proper” (Toder affirmation in opp at p. 6, 8 [emphasis in original]). To be admissible at the grand jury, the video must be authentic (see People v. Patterson, 93 NY2d 80, 84 [1999]). “Authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it, and the foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted” (People v. Robinson, 187 AD3d 1216, 1217 [2d Dept 2020] [internal quotation marks and brackets omitted], quoting People v. McGee, 49 NY2d 48, 59 [1979] and citing People v. Price, 29 NY3d 472, 476 [2017]). A video can be authenticated in more than one way. A video can 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. Patterson, 93 NY2d at 84). Other testimony, “expert or otherwise, may also establish that a videotape truly and accurately represents what was before the camera” (id. [internal quotation marks and citation omitted]). One way to authenticate a surveillance video is through the testimony of the police officer who obtained the video. The officer can do that by testifying that the officer personally copied the video from the surveillance video recording system onto a disc or flash drive; verified that the video system was in working order; that the date and time on the video appeared to be accurate; and that the video was in an unaltered condition (see People v. Robinson, 187 AD3d at 1217; People v. Grant, 170 AD3d 888, 890 [2d Dept 2019]). In this case, the District Attorney properly authenticated the surveillance video at the grand jury through the testimony of Detective Lambert. Although Lambert did not personally copy the video directly from the video system, he received a copy of the video by email from the owner, the custodian of the video, and Lambert testified that the video received by email was the same video that he had viewed on the owner’s cell phone inside 511 Lafayette Avenue. This testimony was sufficient to establish that the video received by Lambert came from the video recording system, the same as if Lambert had personally copied the video at the location directly from the video system. Lambert also established that the video at the grand jury was in an unaltered condition by testifying that the video on the disc was a fair and accurate representation of the video that he had viewed in the app on the cell phone. The remaining foundational requirements also were satisfied by Lambert’s testimony. He testified that the video recording system appeared to be working properly and recording events contemporaneously. His testimony that he directed the owner to the date and time of the alleged shooting, and that the owner controlled the surveillance video through the app, established that the date and time on the video appeared to be accurate, with the caveat that the time stamp was one hour behind real time (see Commonwealth v. Gonzalez, 99 Mass App Ct 161, 170-171, 162 NE3d 1263, 1272 [Mass App Ct 2021] [police officer authenticated hotel surveillance video by testifying that he met with the hotel manager, went to where the surveillance system was located, searched the system with the hotel manager for particular files, and copied them to a flash drive]). Any alleged discrepancy between the date and time of the crime and the date and time stamp on the video recording goes “to the weight of the evidence, not its admissibility” (People v. Costello, 128 AD3d 848, 848 [2d Dept 2015]). Next, defendant argues that the surveillance video cannot by itself establish that the item in her hand was a firearm, let alone an operable firearm. Contrary to this argument, however, the grand jury could reasonably infer that the item in her hand was an operable firearm based on her arm movements, the three apparent muzzle flashes emanating from her extended arm, and the shattering of the rear windshield of a parked car after the final apparent muzzle flash. This court disagrees with the argument that the District Attorney needed to present additional independent evidence, such as ballistic evidence, to verify the content of the video. This argument overlooks that legally sufficient evidence at the grand jury means “means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” (People v. Gaworecki, 37 NY3d 225, 230 [2021]). Lastly, defendant claims that Bureau of Prisons Special Investigator Agent Sondra Miller testified falsely and misled the grand jury about defendant’s “rights as a federal correction officer” (Bonus reply affirmation at 5; see Notice of Motion at 3; Bonus affirmation in supp of mot at 8). Miller worked at the same correctional facility as defendant and testified that defendant was “authorized” to carry a firearm “only at work…if the post was armed” but not outside of the correctional facility3 The factual record, however, is not sufficiently developed to establish that Miller lied or was ignorant of the law. This court is, therefore, not convinced that Miller testified inaccurately when she stated that defendant was not authorized to carry a firearm outside of the correctional facility. In any event, even if inaccurate, Miller’s testimony did not make the grand jury proceeding defective within the meaning of Criminal Procedure Law §210.35 (5) (see People v. Huston, 88 NY2d 400, 407 [1996]). The alleged right of defendant to possess a firearm as a federal correctional officer was not an issue before the grand jury. Moreover, any allegedly inaccurate testimony about a potential defense to raise at trial did not impair the integrity of the grand jury proceeding, the purpose of which was to determine whether there was sufficient evidence to warrant such a trial in the first instance (see People v. Calbud, Inc., 49 NY2d 389, 394 [1980] ["The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution"]). For the reasons stated above, the motion to renew and reargue is granted but this court adheres to its previous decision denying the motion to dismiss the indictment. This is the decision and order of this court. Dated: December 2, 2021

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

New York Legal Awards 2022 (NYLA)

October 06, 2022
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.


Learn More

Florida Legal Awards 2022

May 19, 2022
Miami, FL

Daily Business Review honors attorneys and judges who have made a remarkable difference in the legal profession in Florida.


Learn More

Florida Legal Awards 2022 (FLLA)

May 19, 2022
Miami, FL

Daily Business Review honors attorneys and judges who have made a remarkable difference in the legal profession in Florida.


Learn More

Attorney


McGovern Legal Services, LLC seeks an attorney to join our team at our North Brunswick office working with Condominium Associations, Homeown...


Apply Now ›

Litigation Associate


A well-respected regional law firm that has represented businesses in Tampa Bay for decades is seeking a commercial litigation associate to ...


Apply Now ›

Trial Attorney - New York


Auto defense firm seeks experienced TRIAL ATTORNEY to do trials,motions, court appearances and depositions. Email resume: [email protected]


Apply Now ›

LAWRENCE LAW LLC

05/16/2022
NJLJ Web

Lawrence Law LLC congratulates Jeralyn Lawrence, Esq. on her upcoming installation as President of the New Jersey State Bar Association


View Announcement ›

RAYNES & LAWN

05/11/2022
TLI Web

RAYNES & LAWN is Proud to Welcome Next Generation to the Firm


View Announcement ›

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN

05/11/2022
TLI Web

VAN DER VEEN HARTSHORN & LEVIN Congratulates the Attorney of the Year Finalists named by The Legal Intelligencer


View Announcement ›