Erie Cty. Dep't of Soc. Serv. v. Melanie H. (In re Mekayla S.)

214 N.Y.S.3d 547

In the MATTER OF MEKAYLA S.

Erie County Department of Social Services, Petitioner-Respondent;

v.Melanie H., Also Known as Melanie S., Respondent-Appellant.

(Appeal No. 1.)

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 3, 2024

Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, J.), entered December 15, 2022, in a proceeding pursuant to Family Court Act article 10. The order, inter alia, determined that respondent had abused the subject child.

CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-APPELLANT.

BENJAMIN MANNION, BUFFALO, FOR PETITIONER-RESPONDENT.

PRESENT: WHALEN, P.J., BANNISTER, GREENWOOD, AND KEANE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: In these proceedings pursuant to Family Court Act article 10, respondent mother appeals in appeal No. 1 from an order of fact-finding and disposition that, inter alia, adjudged that she abused her daughter. In appeal No. 2, the mother appeals from an order of fact-finding and disposition that, inter alia, adjudged that she derivatively abused her son. The adjudications arose from allegations that the mother’s boyfriend sexually abused the daughter on multiple occasions.

The mother contends in both appeals that Family Court erred in admitting in evidence home surveillance videos depicting the abuse inasmuch as petitioner failed to establish the authenticity of the videos. Under the circumstances of this case, we conclude that the videos were sufficiently authenticated through testimony regarding their source and how they were discovered in conjunction with testimony supporting the conclusion that the videos depicted the area and individuals they purported to depict (see People v. Goldman, 35 N.Y.3d 582, 595-596, 135 N.Y.S.3d 48, 159 N.E.3d 772 [2020]; see generally People v. Jordan, 181 A.D.3d 1248, 1249-1250, 119 N.Y.S.3d 786 [4th Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 391, 152 N.E.3d 1192 [2020]).

The videos were discovered by the Federal Bureau of Investigation (FBI) during an unrelated investigation in late January 2022 into the trading of child pornography. The FBI executed a search warrant upon a person (suspect) who was a subject of their investigation. The suspect admitted to an FBI special agent that he had been hacking into security web cameras and that, in 2019, he had hacked into a security camera and observed what he believed was an adult male sexually abusing a teenage girl. Following the suspect’s directions, the FBI was able to obtain from the suspect’s computer three videos and, from there, details regarding the security camera login information, including an email address. Through the FBI’s investigative work, together with the assistance of the New York State Police, it was determined that the videos came from a camera in the house in which the mother resided with the subject children and her boyfriend. The FBI agent explained how he copied the videos from the suspect’s computer onto a DVD, and he testified that the videos on the DVD that was admitted in evidence at the fact-finding hearing were true and accurate copies of the videos he viewed on the suspect’s computer. He testified that he did not make any observations that led him to believe that the video footage had been tampered with or altered in any way. The videos were date-stamped from May, June, and July 2019.

In the course of the investigation, the State Police obtained a New York State driver’s license of the male occupant of the house and also a student school identification card of the teenage girl who lived in the house. The identification cards portrayed the individuals in the videos. A detective with the State Police testified that he showed screenshots from the videos to the mother, who identified the female in one image as her daughter and the male in another as her boyfriend. The mother refused to view the videos.

The mother contends that petitioner failed to authenticate the videos through the testimony of a person who witnessed the events, made the videos, or had sufficient knowledge of the surveillance system to show that it accurately recorded the events. She further contends that petitioner failed to establish that the videos were not fabricated by the suspect. We reject those contentions.

[1–6] The admissibility of video evidence rests within the sound discretion of the trial court so long as a sufficient foundation for its admissibility has been proffered (see People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999]). In determining whether a proper foundation has been laid, the accuracy of the object itself is the focus of inquiry (see People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 399 N.E.2d 1177 [1979], cert denied 446 U.S. 942, 100 S.Ct. 2166, 2167, 64 L.Ed.2d 797 [1980]). "Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it" (id.; see People v. Price, 29 N.Y.3d 472, 476, 58 N.Y.S.3d 259, 80 N.E.3d 1005 [2017]). A video "may 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 video[ ] accurately represents the subject matter depicted" (Patterson, 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665). A video may also be authenticated, however, by "[t]estimony, expert, or otherwise … establishing] that [the] video[ ] ‘truly and accurately represents what was before the camera’ " (id. [emphasis added]). "[T]he foundation necessary to establish [authenticity] may differ according to the nature of the evidence sought to be admitted" (Goldman, 35 N.Y.3d at 595, 135 N.Y.S.3d 48, 159 N.E.3d 772 [internal quotation marks omitted]).

[7] We agree with the court that the videos were sufficiently authenticated and that "any alleged uncertainty went to the weight to be accorded the evidence rather than its admissibility" (People v. Houston, 181 A.D.3d 477, 478, 118 N.Y.S.3d 110 [1st Dept. 2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 39, 149 N.E.3d 877 [2020] [internal quotation marks omitted]). The video came into police possession through unusual circumstances, and through the investigation, the police were able to corroborate much of what was depicted in the video. The testimony of the FBI agent and the State Police detective authenticated the videos through circumstantial evidence of their "appearance, contents, substance, internal patterns, and other distinctive characteristics" (People v. Franzese, 154 A.D.3d 706, 707, 61 N.Y.S.3d 661 [2d Dept. 2017], lv denied 30 N.Y.3d 1105, 77 N.Y.S.3d 4, 101 N.E.3d 390 [2018]; see Guide to NY Evid rule 9.05 [6], Methods of Authentication and Identification, https:// nycourts.gov/judges/evidence/9-AUTHENTICITY/9.05_METHODS.pdf [last accessed May 16, 2024]; see also Jordan, 181 A.D.3d at 1249-1250, 119 N.Y.S.3d 786; see generally Goldman, 35 N.Y.3d at 595-596, 135 N.Y.S.3d 48, 159 N.E.3d 772). The testimony at the fact-finding hearing established that the videos depicted the living room of the home in which the mother, the subject children, and the boyfriend lived. The State Police detective testified that the mother identified her daughter and boyfriend in screenshots taken from the videos; that he observed cameras in the house, including in the living room; and that he observed that the living room and its furnishings matched what was shown in the videos. As the court noted, the same couch, afghan, end table, and lamp were all visible in the videos and photographs. Other particularly specific items the police recovered from the home were also seen in the videos. In addition, the mother, the children, and the boyfriend were all easily identifiable in the videos. The court determined that the "actions, dialogue, and behavior shown in the videos show no indication of any tamper- ing." In other words, there were "distinctive identifying characteristics" in the videos themselves (Goldman, 35 N.Y.3d at 595, 135 N.Y.S.3d 48, 159 N.E.3d 772). There was also the "significant fact" that the mother did not dispute that (id.). Rather, the mother confirmed through the screenshots from the videos that the individuals shown were her children and boyfriend. In addition, the FBI agent testified that he primarily investigated child pornography and performed digital forensic work and that he saw no signs pf alteration or tampering with the videos. We therefore conclude that petitioner established that the videos "accurately represented] the subject matter depicted" (id. [internal quotation marks omitted]), and we further conclude that the court acted within its "founded discretion" (Patterson, 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665) in admitting them in evidence.

[8] Contrary to the mother’s further contention in appeal No. 1, the court’s finding of abuse is supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). Because the mother failed to testify, the court was permitted to "draw the strongest inference that the opposing evidence permit[ed]" (Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995]; see Matter of Ariana F.F. [Robert E.F.], 202 A.D.3d 1440, 1442, 161 N.Y.S.3d 661 [4th Dept. 2022]; Matter of Noah C. [Greg C.], 192 A.D.3d 1676, 1678, 145 N.Y.S.3d 266 [4th Dept. 2021]). Although the mother did not directly participate in the boyfriend’s sexual abuse of the daughter, the evidence permitted the court to infer that the mother knew or should have known about the abuse and did nothing to prevent it (see Matter of Lynelle W., 177 A.D.2d 1008, 1008, 578 N.Y.S.2d 313 [4th Dept. 1991]; see also Matter of Peter C., 278 A.D.2d 911, 911, 718 N.Y.S.2d 551 [4th Dept. 2000]).

The court afforded the videos great weight based on clear evidence of their reliability, including that the room depicted in the videos was...