People v. Mosley

215 N.Y.S.3d 303

239 N.E.3d 928

41 N.Y.3d 640

The PEOPLE of the State of New York, Respondent,

v.Farod MOSLEY, Appellant.

Court of Appeals of New York.

Decided April 23, 2024

Hiscock Legal Aid Society, Syracuse (Thomas Leith and Philip Rothschild of counsel), and Cerio Law Offices, PLLC, Syracuse (Nathaniel V. Riley of counsel), for appellant.

William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), for respondent.

OPINION OF THE COURT

HALLIGAN, J,

₆₄₂This case concerns an increasingly prevalent issue: when may someone who is not an eyewitness to a crime testify to a jury that the defendant is the person depicted in a photo or video. We hold that such testimony may be admitted where the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment. Here, there was no showing that the proffered witness₆₄₃ was sufficiently familiar with the defendant to render his testimony helpful, or that the jury faced an obstacle to making the identification that the witness’s testimony would have overcome. Accordingly, we reverse.

I.

On June 10, 2015, police cameras in Syracuse captured a grainy video of a man running through the street and filing three shots into a van. The van promptly drove off, and the responding officers recovered two bullet casings but did not see the shooter.

A grand jury indicted defendant Farod Mosley for the shooting in September 2015, but the indictment was dismissed as legally insufficient. In July 2016, as the People were preparing to re-present the charges against Mosley to a grand jury, an assistant district attorney showed the video of the shooting to Detective Steven Kilburn. Kilburn identified Mosley as the shooter in the video and repeated his identification to a grand jury, which indicted Mosley.

The trial took place in February 2018, and the key issue was identification of the shooter in the video. Though one of the van’s passengers testified that he remembered the shooting, he said that he had not seen the shooter. And though an analyst testified as to the recovered bullet casings, she stated that they had not been tested for either fingerprints or DNA. The video therefore was the only evidence tying Mosley to the crime.

At trial, the People played the video and relied on Kilburn to provide lay, non-eye- witness identification testimony that he believed Mosley was the shooter in the video.¹ Kilburn first testified as to his fa- miliarity with Mosley during voir dire, out of the presence of the jury. Kilburn, a homicide detective, explained that he met Mosley on January 5, 2016, when Mosley was brought into the precinct as a suspect in a different crime.²

Kilburn thus estimated that by the time of the trial for the instant offense in February 2018, he had known Mosley for a ₆₄₄year to a year and a half. When asked to describe his interactions with Mosley, Kilburn said he had "sat in rooms with Mr. Mosley," "walked side by side with Mr. Mosley," and "had the occasion to speak with him," as well as having viewed both police-related and Facebook photos of Mosley. He estimated he had been in the same room as Mosley on "a number" of occasions, but gave only one specific date—January 5, 2016, the first date he could recall seeing Mosley face-to-face. He could not ever recall having "street interactions" with Mosley. He also specified that at the time the assistant district attorney asked him if he could identify the shooter in the surveillance video in July 2016, he knew that Mosley had been arrested on a warrant for a "shots fired and weapons charge."

The judge concluded that Kilburn had "an extensive basis of knowledge" to identify Mosley in the video. To avoid airing prejudicial information about other police interactions before the jury, the judge instructed Kilburn to avoid mentioning the unrelated criminal investigation for which he had arrested Mosley.

Kilburn accordingly told the jury that he met Mosley about seven months after the video was captured during his routine "canvassing" of the Syracuse neighborhood where the shooting occurred, had known him for about a year and a half, and that he had "interacted" with Mosley, "walked" with him, and spoken with him on a "couple" of occasions. He testified that he was familiar with Mosley’s "body language," "body type," and "build." He then viewed the video and identified the shooter as Mosley. He explained that though he did not know Mosley at the time of the shooting and did not know what Mosley had been wearing that day, he based his identification on his interactions with Mosley, his "build," the "shape of his nose," and "on previously viewing the video and being able to zoom in and stuff." Though he referenced Mosley’s nose, he conceded when shown screenshots of the video "the face is a blur" and there was no nose apparent at all. Kilburn also opined that Mosley’s appearance had not changed, and that Mosley "as he sits there now is the same as when I first encountered him, which is the same as he appears in that video."

During deliberations, the jury requested to see the video again and a readback of Kilburn’s testimony. They also requested—and were denied—a magnifying glass with which to view the video. The jury ultimately convicted Mosley of two counts of criminal possession of a weapon in the second degree ₆₄₅(Penal Law § 265.03[1][b], [3]) and reckless endangerment in the first degree (id. § 120.25).

Mosley argues that the trial court abused its discretion in admitting Kilburn’s testimony. The Appellate Division (with two Justices dissenting) rejected this contention, holding that the People demon- strated Kilburn was more likely than the jury to correctly identify Mosley in the video. Because the People failed to establish that Kilburn’s testimony would aid the jury in making an independent assessment regarding whether the person in the video was Mosley, we reverse.

II.

We have twice before considered the admission of lay non-eyewitness identification testimony: in People v. Russell, 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 (1992), and in People v. Sanchez, 21 N.Y.3d 216, 225, 969 N.Y.S.2d 840, 991 N.E.2d 698 (2013). In Russell, the trial court allowed four lay witnesses—the defendant’s roommate, his roommate’s mother, his landlord, and a friend—to identify the defendant as the person caught in surveillance photographs committing a bank robbery (People v. Russell, 165 A.D.2d 327, 329, 567 N.Y.S.2d 548 [1991], affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922). The People presented evidence that the defendant had disguised himself by growing an "uncharacteristic" beard that he sported during the robbery, and that he changed his appearance afterward by shaving it (id.). Stressing two considerations—the "personal knowledge" that the witnesses had "of defendant’s appearance as of the time when the photographs were taken," as well as the fact that defendant had made the jury’s task "more onerous" by creating impediments to identification (Russell, 79 N.Y.2d at 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922)—we held that the identification testimony was properly admitted. In reaching this conclusion, we referenced two federal cases, United States v. Robinson, 804 F.2d 280, 282 (4th Cir. 1986) and United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984). Both of these cases construed Rule 701 of the Federal Rules of Evidence (lay opinion testimony) and focused on the two inquiries underpinning our conclusion in Russell: the extent of the witnesses’ familiarity with the defendant, and whether the defendant had made the jury’s job harder through use of a disguise or change in appearance. Similarly, in Sanchez we concluded that the admission of lay non-eyewitness testimony was proper because the proffered testimony was from two detectives who had known the defendant "from prior occasions" (People v. Sanchez, 95 A.D.3d 241, 249, 941 N.Y.S.2d 599 [2012], affd 21 N.Y.3d ₆₄₆216, 969 N.Y.S.2d 840, 991 N.E.2d 698), and it was "undisputed" that the defendant’s appearance had changed between the crime and the trial (Sanchez, 21 N.Y.3d at 225, 969 N.Y.S.2d 840, 991 N.E.2d 698).

Due to the widespread deployment of surveillance in public spaces and the ubiquity of private cameras and video recording devices, lay opinion identification testimony has become an increasingly common form of evidence (see George Bach, Moderating the Use of Lay Opinion Identification Testimony Related to Surveillance Video, 47 Fla St U L Rev 445, 447 n 5 [2020] [tracking the multifold increase in the annual average of state cases discussing lay opinion identification testimony related to surveillance video since 2010]; Bennett Capers, Crime, Surveillance, and Communities, 40 Fordham Urb LJ 959, 961-962 [2013] [tracking the expansion of surveillance technology in New York City]).³

Correspondingly, lay opinion identification testimony and the issues surrounding its admissibility have garnered increased at- tention from courts around the country (see e.g. State v. Gore, 342 Conn. 129, 269 A.3d 1 [2022]; State v. Sanchez, 247 N.J. 450, 255 A.3d 1118 [2021]; Glenn v. State, 302 Ga. 276, 806 S.E.2d 564 [2017]; Lenoir v. State, 222 So.3d 273 [Miss. 2017]; People v. Thompson, 2016 IL 118667, 401 Ill. Dec. 5, 49 N.E.3d 393 [2016]).⁴

[1] We first note that, despite the increasing prevalence of lay non-identification eyewitness testimony, its use presents several challenges. Courts have historically been wary of lay opinion testimony, which may "usurp the fact-finding function of the jury" (United States v. Garcia, 413 F.3d 201, 210-211 [2d Cir. 2005]). Although use of such testimony may be warranted ₆₄₇in certain circumstances, courts must be vigilant that the testimony does not unnecessarily invade the jury’s role (see United States v. La-Pierre, 998 F.2d 1460, 1465 [9th Cir. 1993] [though "sometimes...