Criminal Court of the City of New York, New York County, May 15, 2019

The Legal Aid Society, New York City (Russell Novack of counsel), for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City (Frances Manzo of counsel), for plaintiff.

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]; 100.40 [1]).

Procedural History

The factual part of the accusatory instrument alleges, in relevant part, that New York City Police Department 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 [*2]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.

I. Legal Standards

An information must contain factual allegations providing reasonable cause to believe that the defendant committed the{**64 Misc 3d at 312} offense charged in the accusatory part of the information, and nonhearsay 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 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 NY3d 1064, 1066 [2015], quoting People v Kalin, 12 NY3d 225, 230 [2009], quoting People v Henderson, 92 NY2d 677, 679 [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 NY2d 597, 602 [2001]; People v Buie, 86 NY2d 501, 505 [1995]; People v Brensic, 70 NY2d 9, 14 [1987]; People v Caviness, 38 NY2d 227, 230 [1975]; People v Kass, 59 AD3d 77, 86 [2d Dept 2008]; People v Egan, 78 AD2d 34, 35 [4th Dept 1980]; see generally Guide to NY Evid rule 8.00, Definition of Hearsay, http://www.nycourts.gov/judges/evidence/8-HEARSAY/8.00_DEFINITION%20OF%20HEARSAY.pdf).^[FN*] A "statement" may be oral, written, or nonverbal, provided that the verbal or nonverbal conduct is intended as an assertion (see People v Kass, 59 AD3d at 86; e.g. People v Nieves, 67 NY2d 125, 131 n 1 [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 AD2d 406, 412 [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{**64 Misc 3d at 313} Evid rule 8.00, Definition of Hearsay, http://www.nycourts.gov/judges/evidence/8-HEARSAY/8.00_DEFINITION%20OF%20HEARSAY.pdf). Whatever form a statement takes, it must have "a content that can be characterized as true or false" (People v Kass, 59 AD3d at 86) [*3]in order to be offered for the "truth of the matter[ ] . . . assert[ed]" (Nucci v Proper, 95 NY2d at 602). 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 [Sup Ct, NY 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 AD2d 350, 351 [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 NY Slip Op 50866[U] [Crim Ct, NY 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 [Crim Ct, NY 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 NY3d 64, 69 [2004]; People v Patterson, 93 NY2d 80, 84 [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{**64 Misc 3d at 314} equipment that the videotape accurately represents the subject matter depicted"]; People v Fondal, 154 AD2d 476, 477 [2d Dept 1989] [adequate foundation established for introduction of surveillance video that depicted crime]; People v Weckworth, 55 Misc 3d 1210[A], 2017 NY Slip Op 50517[U], *7, *8 n 4 [Crim Ct, NY 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 NY Slip Op 50826[U] [Crim Ct, Kings County 2014]).

This court finds the reasoning in People v Allison (21 Misc 3d 1108[A], 2008 NY Slip Op 52008[U] [Nassau Dist Ct 2008]) and People v Schell (18 Misc 3d 972 [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 renders 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. Nonhearsay does not become hearsay with the passage of time.

II. Conclusion

Detective Caminito's sworn assertion 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 [*4]deposition, satisfies the nonhearsay 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.