42 Misc. 3d 492
N.Y.C. Fam. Ct.2013Background
- Petition filed Oct 3, 2013 charging petit larceny and criminal possession of stolen property.
- Investigator Bright, an American Apparel asset protection employee, testified via deposition about the alleged theft.
- Bright advised the August 23, 2013 surveillance tape might have been destroyed; tapes stored centrally in Los Angeles.
- American Apparel indicated surveillance tapes are kept 39 days before destruction; the August 23 tape was destroyed.
- Respondent moved to exclude Bright’s testimony on best evidence grounds; court denied the motion.
- Respondent also argued Brady and Rosario violations; court denied sanctions and found no violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether live-video observation testimony falls within the best evidence rule. | Bright’s live-monitor observations are admissible; no original videotape needed. | Best evidence rule requires original tape or its equivalent; destruction problematic. | No best evidence violation; live observations admissible if equipment worked. |
| Was there a Brady/ Rosario violation due to destroyed tape? | No possession/control by law enforcement; tape destruction not exculpatory. | Destruction could impede defense; sanctions may be warranted. | No Brady/ Rosario violation; sanctions denied. |
| Can Bright testify about contents from a live feed despite tape destruction? | Testimony is based on contemporaneous observations from live video. | Relies on potentially unavailable primary evidence. | Admissible; requires showing contemporaneous, true-to-life feed. |
Key Cases Cited
- Schozer v. William Penn Life Ins. Co. of N.Y., 84 NY2d 639 (N.Y. 1994) (heavy burden for admitting derivative evidence under best-evidence rule)
- People v. Cyrus, 48 AD3d 150 (1st Dept 2007) (surveillance-testimony from live video feeds not per se excluded)
- Fondal v. Sears, Roebuck & Co., 154 AD2d 476 (2nd Dept 1989) (live video observations not error when videotape admitted or not at issue)
- People v. Walloe, 88 AD3d 544 (1st Dept 2011) (tapes not always required for best-evidence concerns)
- People v. Brock, 246 AD2d 406 (1st Dept 1998) (preserves argument that failure to produce tape not fatal where evidence supported)