The People, Respondent,v.Chris Price, Appellant.BriefN.Y.April 26, 2017To he ar;_gmd l?J! T\l\fl\u E. LINN (25 minlfte.1) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, C{gainst- CHRIS PRICE, D efe fl da 11 t-Appe Ila n t. BRIEF FOR DEFENDANT-APPELLANT December 29, 15 LYNN \X'. L. V\I!EY T\l\L'.\fY E. LINN . \ ttornevs for Defendant-,\ ppellant 111 John Street, 9th Moor New York, N.Y. 10038 (212) 693-0085 APL-2015-00211 INDEX T:\BIJ~ C)l,· .\UTHORIT!I~S ................................................................................... iii PREJJo\Il.'.l.\RY S'l'.\'rI~1\Il~N·r .............................................................................. 1 QUESTION PRI~SI~NTI~D ..................................................................................... 2 SU1'.L\L\RY 01,· :\RC;U1\1I~NT ................................................................................ 3 S'L\'fJ~?\11,~N'f 01,· I;.\CfS ....................................................................................... 7 Introduction ............................................................................................................ 7 'fhe I)eople's c=ase .................................................................................................. 8 'fhe lZobbery ..................................................................................................... 8 The Motion in Limine and .\dmission of a Social Networking Photograph Portraying :\ppellant Holding a Gun and Currency ............ 11 ,\ppellam's (=ase ................................................................................................... 20 Closing Arguments Regarding the Photo ......................................................... 22 (]rnrge, Deliberations, and Verdict. ................................................................... 24 'l'h · ·\ 11 I). . . I) · . . ? ,.. e . ppc a tc 1v1s1on .. cos1on ....................................................................... ~.:i :\l\.C;UI\1I~N·r ............................................................................................................ 26 THE COURT ERRED IN .\DI\IITTINC AT "\PPELLANT'S ,\Rl\IED ROBBERY TRIAL, WlilCH \Xl\S B_\SED ON ONE \vIT>JESS'S IDENTIFI- C\TIOT\', .\N UND.\TED SOCIAL NET\vORKING PI-IOTOGR:\PH 01; :\PPELL\NT POSINC \VTfH :\ 1--L\NDCUN :\ND CURRENCY \vHEN THE PEOPLE F:\ILED TO ES'L\BLISH TIL\T THE PHOTO \v.\S GENUINE OR Tl-L\T THE GUN \v.\S THE R015BI~RY \vI~:\PC)N ................................................................................. 26 .\. The Social "l\ietworking Photograph of .\ppellant Holding a Cun and Money \X/as Not :\uthenticated and, Thus, Inadmissible ..................................................................... 28 1. New York's \'V'cll-Established Requirement of Clear and Convincing Proof of the .\uthenticity of Photographs and Audio and Video Recordings Should Apply to Social Networking Photographs ....................................................... 29 2. There \vas Insufficient Proof That the Photo of .\ppellant Holding a Cun and l\loney \vas Genuine and Unaltered .......................................................... 3 7 B. The Photograph of .\ppellant with a c;un and T\loney at His Trial for .\rmcd Robberv Constituted Extraordinarily Prejudicial Uncharged Crime Evidence That Had No Probative Value and \Vas Therefore Not .\dmissiblc ......................................................... 51 C. The I ~rroneous :\dmission of the Photo \vas Not I larrnlcss .............................................................................................. 58 CONCI.USJC)N ........................................................................................................ 63 11 'L\BJ J~ OF .\UTtIORITIES C:\SES BN\gess v. State, 292 Ga. 821, 742 S.E.2d 464 (2013) ............................................. 46 Commomvealth v. P11rrjy, 459 ;\fass. 442, 945 N.E.2d 372 (2011) ..................... .42,46 Commomvecdth v. Lr7i!!iams, 456 ;\lass. 857, 926 N .F.2d 1162 (2010) ............... 34,44 Cotton v. State, 297 Ga. 257, 773 S.E.2d 242 (2015) ........................................ 48-49 Dering v. State, 465 S.\V3d 668 (Tex. Crim .. \pp. 201 ...................................... .45 Di1\1ichel v. S. B11jjalo l~y. Co., 80 N.Y.2d 184 (1992) ........................................... 3,36 Gr[ffln v. State, 419 J\fd. 343, 19 .\.3d 415 (2011) ....................................... 33,42,47 L!)1shock ev'\<: rel LL!yshock ;;, 1 lermitc~ge School Dist., 650 F.3d 205 (3d Cir. 2011) .. 46 Lom1ine v. A1arke!Am. Ins. Co., 241 FR.D 534 (D. J\ld. 2007) ............................ 31 A1oore v. State, 295 Ga. 709, 763 S.E.2d 670 (201 ......................................... .47,49 Parker v. Stale, 85 .\.3d 682 (Del. 2014) .................................................................. 34 People v. Allweiss, 48 N.Y.2d 40 (1979) ........................................................... 6,52-53 People v. £1!vino, 71 N.Y.2d 233 (1 .................................................................... 53 l!. .Y.2d1 (1976) ................................................................... 62 People v. Beckley, 185 Cal. .\pp. 4th 509 (Cal. Ct. .\pp. 2010) .................... 31,33,41 People v. Bro1v11, 13 .D.3d 145 (1st Dcp't 2004) .................................................... 54 People v. Brozv11, 266 .\.D.2d 863 (4th Dcp't 1999) ................................................. 55 PeojJ!e v. 216 .\.D.2d 7 (3d Dcp't 1 ! !I People v. ~ymes, 33 N.Y.2d 343 (1974) ............................................................. passim People v. Chamberlain, 96 ,\.D.2d 959 (3d Dcp't 1983) ......................................... . People v. Clemmom, 83 ,\.D.3d 859 (2d Dcp't 2011) ......................................... 26,55 People v. Clevenstine, 68 .\.D.3d 1448 (3d Dcp't 2009) ..................................... 41-42 People v. Condon, 26 N .2d 139 (1 970) ................................................................ 6,54 People v. Crimmins, 3(> N.Y.2d 230 (1975) .......................................................... 61-62 People v. 68 N .2d 520 (1986) ................................................................. passim People v. Finch, 23 N.Y.3d 408 (201 ...................................................................... 57 People v. Fisher, 18 N.Y.3d 964 (2012) ..................................................................... 61 People v. Harrison, 4 .\.D.3d 534 (2d Dcp't 2004) .................................................. 60 People v. Hill, 198 N.Y. 64 (1910) ......................................................................... 6,54 People 11. I foc[y, 73 N .Y.2d 40 (1988) ............................................................... 5,52-53 People v. K11charski, 2013 Ill. ~\pp. 2d 120270, 987 N.E.2d 906 (Ill. App. 2d Dist. 2013) ........................................................................................................................... 33 People v. J.LJDoke, 196 ,\.D.2d 49 (4th Dcp't 1994) ................................................ 62 People 11• J_,aF'oJ!laine, 92 N .Y.2d 470 (1998) ............................................................ . People v. F..e11ihm1, 30 :\1isc. 3d 289 (Sup. Ct., C~uccns County 2010) .................. .41 People z1. AllGee, 49 N .Y.2d 48 (1979) ........................................................... 29-30,39 People v. Ali/Ir, Docket No. 293378, 2013 \VL 238676 (J\Iich. Ct. .\pp. Jan. 22, 2013) ........................................................................................................................... 40 People v. lviqye, 12 N.Y.3d 743 (2009) ....................................................................... 62 People v. ;\/!_yers, 22 N.Y.3d 1010 (2013) ........................................................ 27,54,56 People v. 105 .\.D.3d 1250 (3d Dcp't 2013) ...................................... 27 ,54,56 People v. Papemo, 54 N.Y.2d 294 (1981) .................................................................. 62 People v. Paschall, 91 .\.D.2d CA5 (2d Dcp't 1982) .................................................. 55 People v. Patterson, 93 N.Y.2d 80 (1999) ........................................................... passim People v. Pqyne, 3 N.Y.3d 266 (2004) ........................................................................ 57 People v. Primo, 96 N.Y.2d 351 (2001) ..................................................................... 52 People v. Resek, 3 N.Y.3d 385 (2004) ........................................................................ 52 People v. Rojas, 97 N.Y.2d 32 (2001) ........................................................................ 52 People v. Russell, 79 N.Y.2d 1024 (1992) .................................................................. 38 People v. R.;1ssell, 99 .\.D.3d 211 (1st Dcp't 201 ................................................... 59 People 1;. Santiczgo, 17 N.'t'.3d 661, 669 (2011) ......................................................... 58 People v. T'en!imzj/ia, 52 N.Y.2d 350 (1981) ............................................................ 52 People v. !Febb, 60 .\.D.3d 1291 (4th Dcp't 2009) .......................................... passim People v. U7ngh!, N.Y.3d 769 1 .................................................................... 61 People v. Zackowitz., 254 N.Y. 192 (1930) ............................................................ 54,56 RHi'.\,v. City of Y 14-CV-5231 (\7FC),2015\XIL5146629 (S.D.N.Y. Sept. 2, 201 ....................................................................................................................... 32 Smith v. State, 136 So. 3d 424 !iss. 201 .................................................. 33,42,46 /!. Conn .. \pp. Cl32 (C . \pp. Ct. 2011) ................................ . v State v. Cihson, 2015 Ohio 1679, 2015\vL1962850 (Ohio Ct. :\pp. 6th Dist. 201 ........................................................................................................... 33,44,48-49 State v. llendmwz, 208 N.J. 208, 27 ;\.3d 872 (2011) ............................................. 58 S11hle1 v. State, 442 ;\Id. 632, 113 :\.3d 695 (2015) ................................................. 36 United States v. Hassan, 742 F3d 104 (4th Cir. 2014) ............................................ 42 United States v. Hobbs, 403 F2d 977 (6th Cir. 1968) .............................................. 31 U!!iled Stales v. ]ackso11, 208 F3d 633 h Cir. 2000) ............................................ 50 United States v. 7 69 F.3d 125 (2d Cir. 2014) .............................................. 50 United Stales v. Wade, 388 U.S. 218 (1966) ........................................................ 58-59 L~''ilron v. State, 30 N.E.3d 1264 (Ind. Ct. "\pp. 2015) .......................................... .49 1'om~g v. Co11wc!y, 698 F3d 69 (2d Cir. 2012) .................................................... 59-60 CONSTI'flJ'fIC)N.\I, PROVISIONS lJ .S. c=onst., ;\rnend. \ 1 ••••...••••••••••.•••••••••••••••••••••••••••••.••••••••••••••••••••••.•••••••••••••..•••••••• 27 U.S. Const., :\mend. XIV ......................................................................................... 27 N.Y. C=onst., ,\rt. I,§ 6 .............................................................................................. 27 ST\TUTES Criminal Procedure La\v 450.90 ............................................................................ 2 Criminal Procedure J,aw § 470.15 .......................................................................... 55 Penal Law§ 265.01 .................................................................................................... 51 VI OTHER AUTHORITY David Bahde, Top 9mm 191 I Glfns, Personal Defense \Yorld (Oct. 7, 2014), available al W\V\v.pcrsonaldcfcnseworld.com/2014/10/top- nine-9mm-1911-guns/#colt-de fcnder-2 .............................................. 39,56 J\farissa Bailey, S tllden!s Chmged Lf/ith Posti1~g Doctored Im~ges ef Classmates, StaJj; CBS ClllC\GO (June 10, 2014), available al http://chicago.cbslocal.com/2014/06/ 10/ students-charged-with- posting-doctored-images-of-classmates-staff / .......................................... 32 Damiano Beltrami, I'm Innocent. ]11s! Check Stat11s on Fczcebook., N.Y. TII\fl at _\27 ov. 12, 2009) ................................................................... .42 BEJ'\J_\I'vfIN N. C\RDOZO SCI IOOL OF L\ \\', YESIIIV_\ UNIVERSITY, REVISITING LINITPS: \X1HY \X'ITNESSES i\L\KE J\1IS'L\KES AND HO\\' TO REDUCE TI IE CIL\NCE OF A MISIDENTIFICATION, ;\N INNOCENCE PROJECT REPORT (2009), available at http:/ /www.innoccnceproject.org/ files/imported/ eyewitness_id_ report.pdf/vie\v ............................................................................................. 58 H. Christopher Boehning & Daniel J. Toal, /1lfthenlicati1~g Social iVieclia Evidence, 248 N.Y.J,.j. 65 (2012) ................................................................ 3,33 ;\nne-Sophie Briindlin, I lmv 25 _years qf Photoshop chm~ed 011r perception qf DFUTSCI IE \'V'FLLE (D\'V'), (Feb. 27, 201 , available at http://dw.com/p/1l~ibq ............................................................................. 31 Bronx Documentary Center, _\ltcrcd Images: 150 Y cars of Posed and J\lanipulatcd Documentary Photography, available at \V\vw.alteredimagcsbdc.org/ ........................................................................ 35 Browning Product Catalog, 1911-380 Pistol, available at www.browning.com/ products/ catalog/ family.asp?webflag_ =035 B&catalog_=B .......................................................................................... 39,56 Brian J ,, of· lde 11fil7N1h·o11· The R ,,;1, or t~ .L fi,)l--1..-1..-i'V , . J-\...UiV:,) 11 L\\\' & I IL.I\I. BEIL\\'. 233 (1 ....... 59 \'ll Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength ef an Eyewitness's Memory Representation, 14 J. EXPERIMENTAL PSYCHOL.: APPLIED 139 (2008) ...................................... 60 Hon. Paul W. Grimm et al., Authentication ef Social Media Evidence, 36 Am. ]. Trial Advoc. 433 (2013) ............................................................................ 34 Catherine Guthrie & Brittan Mitchell, The Swinton Six: The Impact ef State v. Swinton on the Authentication ef Digital Images, 36 STETSON L. REV. 673 (2007) .............................................................................................. passim Deborah Hastings, Woman sues facebook for $123 million over 'revenge porn', N.Y. DAILY NEWS Quly 31, 2014), available at www.nydailynews.com/ news/ national/ texas-woman-sues-facebo ok-revenge-porn-article-1.1887 690 ............................................................. 32 MIRIAM HIBEL, NEW YORK IDENTIFICATION LAW: THE WADE HEARING/THE TRIAL (2014) ...................................................................... 59 Lucille A. Jewel, Through A Glass Dark!J: Using Brain Science and Visual Rhetoric to Gain a Prefessional Perspective on Vis11al Advocary, 19 S. CAL. INTERDISC. L.J. 237 (2010) ........................................................................... 36 ~1ARTIN, CAPRA, & ROSSI, NEW YORK EVIDENCE HANDBOOK (2d ed.] .......... 36 Jennifer L. Mnookin, The Image ef Tntth: Photographic Evidence and the Power ef Analogy, 10 YALE J.L. & HUMAN. 1 (1998) ............................................. 31 Zachariah B. Parry, Digital Manipulation and Photographic Evidence: Defrauding the Courts One Thousand Words at a Time, 2009 U. ILL J .L. TECH. & POL'Y 175 (2009) ...................................................................... 31,35 Emily Nelson, Claims ef PhotoFakery Get Lots ef Expomre in Court, WALL ST. J. (Feb. 7, 1997) .................................................................................. 35,37 Vlll COURT 01' :\PPE,\LS ST~\TJ ·~OF NE\'V YORK Respondent, agarnst - CHRJS PRICE, Defendant-:\ ppellant. PRJ] JJ\IIN"\RY STATEl\IENT By permission of the Honorable Eugene J\1. Fahey, Associate Judge of the Court of ,\ppeals, granted July 28, 2015, Chris Price appeals from an order of the :\ppellate Division, Second Department, dated April 15, 2015, affirming a Queens County judt,rment rendered on November 13, 2009, after a jury trial, convicting him of robbery in the first and second degrees and sentencing him to concurrent deternunate prison terms of seven years, to be followed by five years of post-release supervision (Hollie, J., at trial and sentence). On September 10, 2015, this Court granted l\fr. Price poor person relief and assigned Lynn \\1• L. l •"ahey as counsel on this appeal. J\1r. Price is Dr"S"ntl" 1·nc"1·ce~"+-co1 N1 c) st'l'.' l~a" l'e"n s"· ·g1,,_ i L>..Li )' i::l 1-t:lL • l -. {j 1,,:-,) L l .. \.JU.Jlll. The Court has jurisdiction pursuant to C.P.L. § 450. 90(1) to entertam this appeal and review the issues presented. The issue of whether the People failed to properly authenticate the social networking photograph was preserved by defense counsel's objection that there was no evidence as to its origin or unaltered state C\. 71 192). 1 \'\/hether the prosecutor improperly argued that appellant had posted the photo online was preserved by counsel's objection that the argument lacked evidentiary support . 309-10). \"\lhetber the photograph was also inadmissible because it was more prejudicial than probative was preserved by the People's arguments in support of its admission, the court's ruling, and defense counsel's objections to its prejudicial nature 70-71, 73, 79). ( )UESTION PRESENTED \X!hether, at appellant's armed robbery trial based on one witness's identification, the court erred in admitting an undated social networking photograph of appellant posing with a handgun and currency when the People failed to establish that the photo was genuine or that the gun was the robbery weapon. preceded '~ ,\" to the of the appendix. 2 SUI\11\L\RY OF "\RGUJ\1ENT To introduce a photograph into evidence in New York, its proponent must establish by clear and convincing proof that it is a fair and accurate representation of its contents. People v. Patterson, 93 N.Y.2d 80 (1999); People v. Ejy, 68 N.Y.2d 520 (1986); People v. ~ymes, 33 N.Y.2d 343 (1974). Like other forms of technological evidence, such as audio and video recordings, digital photographs present authentication concerns due to the case of making alterations that are difficult to detect. Rjy, 68 N. Y.2d at 528; see Catherine Cuthrie & Brittan Mitchell, The Swinton Sz.Y: The Impact of State v. Swinton on the AHthentication ef Digital!mages, 36 STETSON L. REV. 661, 673 (2007). The interactive and non-secure nature of social networking websites make tampering fears especially well-founded. See, e.g., H. Christopher Boehning & Daniel J. Toal, Authenticatin,~ Social J\;fedia Evidence, 248 N.Y.L.J. 65 (2012). Thus, there is no reason not to apply New York's established standard of authentication to social networking photos, especially since visual evidence can have a tremendous impact on the factfinder. Patterson, 93 N.Y.2d at 84 ("need for responsible accuracy and careful reliability should not be sacrificed to some of the whims and weaknesses of fast moving and rapidly changing technology"); l/ DzA!ichel 11. S 13!!/Jalo Ry. Co., 80 f\.Y.2d 184, 196 (1992) (prejuchce likely from compelling video evidence later proven "distorted" because "it \Vould be difficult to undo its initial impact and to erase the impression left in the minds of the jury members"). In light of the heightened risk of manipulation of digital photos, the People should be bound by the traditional methods of authentication and required to establish that a social networking photo is genuine and unaltered through a witness with personal knowledge of what the photo portrays, expert testimony as to its unchanged condition, or forensic proof that traces the photo to its source. Patterson, 93 N.Y.2d at 84. Here, the People introduced a social networking photo of appellant holding a gun and money that had been posted four months before the robbery. But the People's proof fell far short of establishing the photo's authenticity under ~cw York's traditional standard or anv other reasonable standard. Despite the People's offer of proof that the complainant would identify the gun in the photo as the robbery weapon, he merely said that it was similar. The People introduced no evidence that the gun in the photo, which appears to be one of the most popular guns in .\merica, was unique or distinctive. There was no evidence that the investigating detective through whom the photo was admitted knew whether it was genuine or had been altered. :\nd the People presented no expert or forensic evidence. 4 Only if traditional methods of authentication arc unavailable to the People, despite their substantial resources, should they be allowed to resort to circumstantial evidence to create an inference that the defendant knew of the photo's existence and never protested its posting, or otherwise challenged its accuracy. Herc, the People claimed that the social networking page belonged to appellant, they proved only that it displayed photos of him and a user name that incorporated his last name. This was not sufficient to authenticate the photo, in light of the notorious case of creating a social networking account in another person's name. _\ccordingly, as defense counsel objected, there was no evidence as to when the photo was taken, how it landed on the social networking website on which the People discovered it, or whether it had been altered. Because the complainant failed to identify the gun, and the detective failed to establish appellant's ownership of the web page, the photo was not properly authenticated. Furthermore, even assuming a photograph is properly authenticated, it is not admissible if it depicts an uncharged crime unless it is linked to a "specific material issue." People 11. fl!!r/y, 73 N.Y.2d 40, 54 (1988). Even then, such evidence may not be admitted unless its probative value outweighs its prejudicial potential, because of "the risk that a jury, not fully convinced of the 5 defendant's guilt of the cnme charged may, nevertheless, find agarnst him because his conduct generally merits punishment." People v. Allweiss, 48 N.Y.2d 40, 46 (1979); see aLw People v. Afolineux, 168 N.Y.264 (1901). Photographic evidence of prior possession of a weapon is generally admissible to prove identity only if the weapon was rhe same one used in the charged crime. See People v. Condon, 26 N.Y.2d 139 (1970); People v. }fill, 198 N.Y. 64 (191 O); People v. W'ebh, 60 "\.D.3d 1291 (4th Dep't 2009). Herc, without the complainant's identification of the gun, the photo was not sufficiently probative of appellant's identity as the robber to overcome the highly prejudicial effect of admitting a photo of appellant holding a gun and cash at his trial for armed robbery. Tbe prosecutor exacerbated the error in admitting the photo by repeatedly . . argurng m summation that the complainant "immediately recognized" the gun in the photo, which looked "exactly like" the robbery weapon, and, over defense objection, that appellant "had placed" that photo on "[his] personal web page" 295-96, 304-06, 309-10). The jury struggled for days, received the photo, and repeatedly asked for testimony about the gun's appearance, before finally convicting appellant. 6 Introduction :\ppellant was indicted for robbery in the first degree (displaying what appeared to be a firearm) and robbery in the second degree (aided by another) in connection with a gunpoint robbery in Queens. "\t tnal, complainant Emmanuel Louisma testified that he was delivering milk on i\Iarch 24, 2008, when he was robbed by two men in hoodies, one of whom was armed. l le identified appellant as the gunman in a lineup two-and- a-half months later, and at trial a year-and-a-half after the crime. Neither of the other eyewitnesses identified appellant. 1\lthough Louisma testified that the robbery lasted 10 to 20 minutes, he conceded that he was "bad with time" and did not recall anything that happened beyond the seconds it took for the gunman to twice demand his monev. I ,ouisma gave inconsistent descriptions of the gunman. ( )ver vociferous defense objections, the court granted the People's motion to admit into evidence an online photo of appellant holding a gun and money even though the detective through \Vhom it was introduced could not say when it was taken, who took or posted it, that the website on which it was found belonged to appellant, or that the photo was unaltered. Louisma did not identify the gun in the photo as the one used in the crime. In summation, the prosecutor argued that the photo showed appeilant holding the robbery 7 weapon, that Louisma had positively identified it, and, over further defense protest, that appellant had posted the photo on his own web profile. During deliberations, the jury received the photo and specifically asked about the description of the gun three times. After deliberating for three days, the jury convicted appellant of first- and second-degree robbery, the sole counts submitted for its consideration. The People's Case The Robbery 1\t approximately 10:15 a.m. on J\farch 24, 2008, Emmanuel Louisma and Michael Davis were eight or nine hours into an overnight milk delivery shift, filling an order at P .S. 124 at 150th A venue and 129th Street in Queens 18, 21-27, 99, l 03-06). \Xrhilc Louis ma stood on the sidewalk waiting for Davis to hand him crates of milk from inside the truck, two men wearing "hoodies" approached him from behind (A. 32-34, 107-11, 115). One man, \vho was holding a gun down "low," said, "Yo, you know \Vhat time it is" and "Give it up" . 112, 11 . J ,ouisma raised his hands, responding, "Yo, I don't know what you talking about"(,\. 112, 114). "\iming the gun at Louisma's chest, the man closed to "within arm's reach" of him and repeated, "You know what time it is. Give it up" 112, 116-17). The second perpetrator stood "a couple of feet" behind him . 120). J ,cmisma threw 8 between S 1,000 and S4,000 from his pockets onto the ground, where the unarmed man picked it up . 34-35, 39-40, 123-24, 140-41). The men ran south on 129th Street, got into a car, and drove away 40-41, 87-89, 91-92, 124-27). Davis exited the truck after the men ran off and called his employer while Louis ma called the police (:\. 40, 127). Unable to recall how long the robbery lasted, Louisma estimated that 10 to 20 minutes elapsed ("\. 150-51 ). \X!hen defense counsel repeated the gunman's demands in court in a matter of seconds and asked Louisma what else happened to fill that time, I ,ouisma conceded that he did not remember and was "bad with time," adding, "There is a gun in my face. You got to remember that too, and I am looking at him and I am looking at the gun" (:\. 151-53). Davis, who observed the incident from inside the truck, saw Louisma with lns hands in the air while a man held a gun about "a foot or so away from his chest" (,\. 33-36). Davis did not sec the gunman's face, and described him only as "brown-skinned," "a little taller than [I ,ouisma] ," and wearing a "white and black ... camouflage hoodie[]" . 34-36, 39). Bystander Raymond :-Jidhan could not identify either of the two hooded robbers, but observed that both wore black pants, while one wore a long- sleeveJobody came in or out " . ~)~-). . . " ( ·\ 7 ,.. 7 ,.. 3) 21 Reverend Price learned of appellant's arrest for the ,\farch 24 robbery in late June or early July of 2008 . 249). He agreed that he "kn[e]w about" the option to talk to the police or the prosecutor's office and did not do so (A. 250, 252). During cross-examination, the prosecutor asked Reverend Price whether he had been "informed about a photograph of !his] son holding a gun" and Reverend Price agreed that defense counsel had told him earlier that day (A. 258). Over defense counsel's objection, the prosecutor was permitted to ask Reverend Price whether his response to this information was "a comment to the effect that kids these days find this is socially acceptable to post these online,'' which Reverend Price denied (A. 261). Closmg ,\rguments Regarding the Photo In summation, defense counsel urged the jury to disregard the photo because there was no evidence as to when it was taken, who posted it online, or that it had not been altered before it was posted (,\. 288-91, 294). Thus, counsel argued, it had no evidentiary \Vorth because "[t]here isn't one person in this courtroom" who could verify "that that is a real picture of the defendant holding a real gun that was used in that robbery" 290). The prosecutor began her summation by referencing the photo and arguing that "this gun (indicating), a gun that looked exactly like this," 22 according to Louisma, was used in the robbery (,\. 295-96) .. \lthough Louisma had testified only that the gun in the photo looked "similar" to the one used in the robbery . 11 18, 130-31 ), the prosecutor argued twice more that Louisma had testified that the gun in the photo looked "exactly like" and "just like" the robbery weapon that he had described as having a "black barrel with a silver area on top where the bullets can come out of'' (A. 304-06, 310). The prosecutor also asserted that J ,ouisma's description proved he remembered the gun and that, "if you have never seen a gun before in real life, as Mr. Louisma said ... , you never forget, you never forget that gun that was pointed at you. 1\nd he had immediately recognized this gun"(:\. 305-06, 310). In addition, the prosecutor contended that the photo was "on the defendant's personal web page" (1\. 304), and argued that it was: for you to consider whether it was altered or not. Well, you have this for your consideration when you are in the deliberating room and you can be the judge of that, but you heard Detective Sheehan say that she found this photograph on a public website. You don't need a special password to get in. You don't need any special detective skills to find this. You can on to the public website www.Black Planet.com, and all she did was press in the defendant's name and this 1s a photograph she found in his personal profile. Yeah, we don't know who put up his personal profile. Rut this page of the My Space, Uace book thing, lot,rically \vho is putting up a personal profile where you live, where you were born or their date of birth, that kind of personal information? \X!ho is posting that personal profile and these photographs up? \Xlho would want to do that and who logically docs that? (:\. 309; emphasis added). \Xlhcn the prosecutor concluded that the photo was "something that the defendant had placed on the worldwide web that anyone can sec," the court overruled defense counsel's objection that no evidence in the record supported that assertion (:\. 309-10). Charge, Deliberations, and V crdict The court submitted to the jury robbery in the first degree (display of a firearm) and second degree (aided by another) (:\. 337-41 ). There was no limiting instruction as to the photograph; the court merely gave a gcnenc instruction that "[t]hc law docs not require you to accept all the evidence I have admitted. It's your job to determine what evidence you will accept"(:\. 325). During deliberations, the jury requested readbacks of Louisma's testimony regarding the gunman's initial approach and the gun's appearance, and, later, Louisma's entire direct examination(:\. 357-60, 369-70, 374, 378-79, 397, 399-401). In addition, the jury asked when Louisma first described the gun to police or the prosecutor and requested Detective Sheehan's testimony regarding the gun; the court explained that there was no such testimony 370-71, 373-74, 398, 400). 24 'The jury also requested and was t,riven, inter alia, all the exhibits (A. 351, 396); a readback of Reverend Price's testimony that he found appellant sleeping (A. 357-59, 397); the definition of a lineup "filler" (,\. 357-59, 397); and re- instruction on both counts, with an explanation of the difference between first- and second-degree robbery (A. 378-84, 401 ). The jurors also asked how appellant became a suspect before the lineup, and the court responded there was no evidence about this and they should not speculate 357-59, 368, 397). On the third day of deliberations, the jury found appellant guilty of both counts (A. 385-88). The Appellate Division Decision On appeal, appellant argued that the photograph was improperly admitted because the People failed to establish that it was genuine or that its probative value outweighed its extremely prejudicial effect. In response, the People asserted that they had laid an adequate foundation; the possibility of alteration went to weight, not admissibility; they had to establish only that the photo was an accurate representation of what Sheehan saw on the internet before printing it; and the photo was relevant to identity. On ~\pril 15, 2015, the .\ppellate Division, Second Department, affirmed appellant's conviction. It held, inter that the trial court properly admitted 25 the "photograph posted on the defendant's web page approximately four months prior to the robbery, showing him holding a gun that was similar to the weapon used in the robbery" because "the People laid a proper foundation," "it was relevant to the issue of the defendant's identity as the gunman, and its probative value outweighed any prejudicial effect." People v. Price, 127 ,\.D.3d 995 (2d Dep't 2015) (citing People v. Clemmons, 83 A.D.3d 859 (2d Dep't 2011); People v. Alston, 77 ,\.D.3d 762 (2d Dep't 2010); People v. Lf/7ebb, 60 ,\.D.3d 1291 (4th Dep't 2009)) (A. 3). The Honorable Eugene ::\1. I;'ahey granted appellant leave on July 28, 2015 (,\. 1 ). ;\RC;Ul\lENT THE COURT ERRED JN ,\Dl\1ITT1NG ,\T ,\PPELLANT'S ARMED ROBBERY TRL\L, WHICH \'VAS BASED ON ONE \vTfNESS'S IDENTIFICATION, AN UNDATl~D SOCIAL NI~T\'VORKING PI-IOTOGR:\PH OF ,\PPEL- L\NT POSING \'\/ITH :\ J-L\NDG UN ,\ND CURRENCY \'\/HEN THE PEOPLE FAILED TO ESTABLISH TI-L\T THE PHOTO \'VAS GENUINE OR THAT TfTE GUN \'V,\S THE~ ROBBI ~RY \'VI ·~_\PON. The People's case rested entirely on Emmanuel Louisma's identification of appellant as the hooded stranger who had suddenly robbed him at gunpoint with an accornplice, until the People introduced a social networking photo, taken at least four months before the robbery, that showed appellant posing 26 with a gun and money. The jury struggled with the case for three days, during which they received the photograph and specifically asked about the description of the gun three times before convicting appellant. The photograph, printed from the website blackplanet.com, was improperly admitted into evidence without an adequate foundation. Louisma could not testify that the gun in the photo was the same one used during the crime, and the investigating detective who testified as to the photo's source was unable to verify either that it was a genuine and unaltered portrayal of appellant or that it came from him. Tn addition, since Louisma could not identify the gun in the photo, the photo was not relevant to prove any material issue and served only to suggest that appellant had a criminal propensity. Therefore, it should have been excluded because it had no probative value, and certainly none that could possibly outweigh the extremely prejudicial effect of portraying appellant as a gun-toting robber. Both the authenticity of the photo was not reliably shown, and because the photo's prciudicial effect far outweighed any probative value, its admission was error and denied appellant a fundamentallv fair trial. U.S. Const., Amends. V, XIV; N.Y. Const., ,\rt. T, § 6; People v. i\ilyers, 22 N.Y.3d 27 1010 (2013); People v. Patterson, 93 N.Y.2d 80 (1999); People v. Byrnes, 33 N.Y.2d 343 (1974). "~\. The Social Networking Photograph of Appellant Holding a Gun and Money \Xlas Not Authenticated and, Thus, Inadmissible. J\lid-trial, the prosecutor claimed to have discovered, on blackplanet.com, a photograph of appellant posing with a gun and currency, which had been posted about four months before the robbery. The prosecutor told the court that Louisma would identify the gun as the robbery weapon, and Detective Sheehan would explain the photo's origin. Although defense counsel objected and begged the court to first hear any testimony about the photo outside the jury's presence, the court simply ruled the photo admissible. As the evidence developed, however, Louisma did not confirm that the gun in the photo was the one used against him. "\nd Detective Sheehan admitted that she did not know whether the photo was genuine and unaltered or who created or posted it. Nor could she provide sufficient details about the blackplanet.com profile page to support the People's theory that it belonged to appellant. \Xlithout an adequate showing of its authenticity, the court erred in admitting the photograph. 28 1. New York's \\/ell-Established Requirement of Clear and Convincing Proof of the ;\uthcnticity of Photographs and "\udio and Video Recordings Should ;\pply to Social Networking Photographs. New York has long required clear and convincing proof that photos, audio recordings, and video recordings arc genuine and unaltered before they can be admitted in evidence. Because the alteration of social networking photos is especially easy to achieve but not always readily apparent, the same standard should apply to guard against the admission of tainted, and therefore fundamentally unreliable and misleading, social networking photographs. 1\s a prerequisite to admission of a photograph, there must be "[s]ome reliable authentication and foundation" demonstrating that the image at issue "truly and accurately represents what was before the camera." Patterson, 93 N.Y.2d at 84 (quoting ~ymes, 33 N.Y.2d at 349). This Court last addressed authentication of photographs forty years ago, holding that unimpeached expert testimony was sufficient to authenticate images as true and unaltered reproductions from their negatives. Pryrnes, 33 N.Y.2d at 347-48. Since then, the Court has repeatedly held that the proponent of similar nontestimonial evidence must establish by "clear and convincing" proof that it is genuine and unaltered before its admission. See People v. 1v1cGee, 49 N.Y.2d 48, 59 (1979) ("the accuracy of the object itself is the focus of inquiry, which must be demonstrated by clear and convincing evidence"; addressing audio recordings); 29 see also People l 1• E/y, 68 0J.Y.2d 520, 522 (1986) ("The predicate for admission of tape recordings m evidence is clear and convincing proof that the tapes arc genuine and that they have not been altered"). Requiring clear and convincing proof of the authenticity of social networking photographs is especially warranted because the modifiable nature of digital photographs and the interactive nature of social networking sites heighten the long-recognized risk that technological evidence may be manipulated. The tampering concern was a key factor in this Court's application of the clear and convincing standard to the authentication of sound recordings. See E!J, 68 N.Y.2d at 528 (requiring clear and convincing proof of recording's accuracy even when the speaker's identity as the defendant was conceded "in view of the case with which voices may be transposed on tapes and the difficulty, except for an expert, of detecting such a change"); i\1cGee, 49 N.Y.2d at 59-60. Similarly, when the Court addressed authentication requirements for videotapes, it suggested that establishing the tape's chain of custody could "allow for acceptable inferences of reasonable accuracy and freedom from tampering." Patterson, 93 N.Y.2d at 84. In our modem, digital era, photographs arc as susceptible to manipulation as video and audio recordings, if not more so. The "possibility that photographs could be misleading or manipulated was widely recognized" 30 when they first entered courtrooms. Jennifer L. IV1nookin, The Image of Tmth: Photo._gmphic Evidence and the Power of Analo._gy, 10 YALE J.L. & HCMAN. 1, 53 (1998); see also United States v. f-lobbs, 403 F.2d 977, 978 (6th Cir. 1968) (photos "were viewed with suspicion and received with caution," upon receipt of negatives and proof there had been no alteration). Now, "photoshopping" has become a common phenomenon that pervades our culture. See Anne-Sophie Brandlin, Hou; 25 _yean qf Photoshop cha11ged our perception of reality, DECTSCHE \'VELLE (DW), (Feb. 27, 2015), availahle al http:/ /dw.com/p/1Eibq ("we are so used to photos being modified, alrered, filtered and edited, that 'un- phoroshopped' photos of celebrities shock us and go viral") (accessed Dec. 13, 2015). \'Vith photos developed from negatives, manipulation was " a complicated and costly ordeal." Zachariah B. Parry, Digital 1\1-anipulation and Photo'-gmphic Evidence: Defrcmdi1~g the Courts One Thomand Lvords at a Time, 2009 U. ILL. J.L. TECII. & Prn~'Y 175, 178 (2009). In contrast, the manipulation of digital images is inexpensive and so simple that a moderately skilled user of Photoshop can, for example, "open[] a closed door, add[] water or snow where there was none, ag[cj the subject of a photo, and chang[e] what someone is wearing." Id at 182-83. See also People v. Beck!~y, 185 Cal. :\pp. 4th 509, 515 (Cal. Ct. .\pp. 2010) (recognizing case of altering digital photographs); Lo1mine 31 v. A1arke!Am. Im. Co., 241 FR.D 534, 561 (D. \fd. 2007) ("Digital photographs present unique authentication problems because they ... may be manipulated and altered"); Catherine ( ;uthric & Brittan Mitchell, The Szvinton Six: The Impact qf State v. Swinton on the Authentication ef Dzgital Imc{ges, 36 STFTSON L. H.EV. 673 (2007) ("Digital photographs arc much easier to modify ... than traditional images[, and] alteration docs not require advanced training, equipment, or f "\ so twarc J· The prevalence of internet harassment through altered images, and the fact that photographic alteration has become, quite literally, child's play, shows that fear of tampering remains extremely well-founded. See Marissa Bailey, S t11dents Chmged if7ith Posting Doctored Imc{ges ef Classmates, Staff, CBS CI IIC\GO Qunc 10, 2014), available athttp://chicago.cbslocal.com/2014/06/10/ students- charged-with-posting-doctored-images-of-classmates-staff/ (students in middle school created "graphic images" with pasted faces of classmates and school personnel, and publicly posted them on lnstagram) (accessed Dec. 13, 2015); see alro Deborah Hastings, li/'oman sues for S 12 3 million over (revenge porn', N.Y. D;\TLY NE\\"S Quly 31, 201 , available at www.nydailynews.com/ news/ nati onal/ texas-woman-sucs-facebook-revcngc-porn-articlc-1.1887 690 (face super- imposed onto nude photos and posted on fake Facebook profile page) (accessed Dec. 13, 201 . Cf Rl1i:;: v. Ci(y of York, 14-CV 1 (\T}-7(') 2015 .l , -' _,, ., J l_ \VL 5146629, at *9 (S.D.N.Y. Sept. 2, 2015) (defendant "circulated a text, depicting [plaintiffs] face 'photoshopped' onto a naked woman's body"). Photos obtained from social networking websites are especially untrustworthy, due to the sites' interactive and non-secure nature. See, e.g., H. Christopher Boehning & Daniel J. Toal, ANthenticating Social 1vfedia Evidence, 248 N.Y.L.J. 65 (2012) ("social media is often stored on remote servers, is accessed through unique interfaces, can be dynamic and collaborative in nature, and is uniquely susceptible to alteration and fabrication"). Appellate courts throughout the count1y have recogni'.l:ed that: "anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password," and, consequently, "[ t]he potential for fabricating or tampering with electronically stored information on a social networking [site]" is high, and poses challenges to authenticating printouts from the website. Smith v. State, 136 So. 3d 424, 432 (Miss. 2014) (quoting Gri:ffin v. State, 419 Md. 343, 352-54, 19 "\.3d 415, 421-22 (2011 )); see a!w State v. Gihson, 2015 Ohio 1679, 2015 \\IL 1962850, ~8 (Ohio Ct. App. 6th Dist. 2015) (same); People v. KHcharski, 2013 Ill. "\pp. 2d 120270, 987 N.E.2d 906 (Ill. App. 2d Dist. 2013) (affirming defendant's conviction of electronic harassment for changing his ex- girlfriend's l\IySpace page without her perrn~ission, posting lewd photo and cornrncntary, and changing her password); 13eckl~y, 185 Cal. App. 4th at 515-16 33 ("anyone can put anything on the Internet .... [and] hackers can adulterate the content of any web-site from at!)' location at any time") (quotation omitted; emphasis in original); Commomvealth v. lvillim:ns, 456 I\fass. 857, 869, 926 N.E.2d 1162, 1172-73 (2010) (messages apparently sent from "[defendant's] I\fySpace \'Veb 'page'" inadmissible when no proof defendant had exclusive access). Due to the extreme ease of tampering with social networking photos, this Court should adhere to its well-established standard for authentication of similar technological evidence and apply it to such photos. Some states have set "a lower hurdle" for admission of social media evidence, requiring only a prima facie showing "that a jury could reasonably find that the proffered evidence is authentic." Parker v. State, 85 A.3d 682, 683 (Del. 2014); see also Hon. Paul \'V. Grimm ct. al., A11the11tication of Social Afedia Evidence, 36 :\Ivr. J. TRL\L ADVOC. 433, 441-54 (2013) (comparing different jurisdictions' standards regarding "the authentication and admissibility of social media evidcnce- typically photographs and postings on IvfySpacc and Faccbook pages"). C;ivcn the case of undetected manipulation and the dramatic impact that photographs can have on a jury, however, there is no sound reason for New York to abandon its established standard in favor of a more lenient one that can result in the admission of false evidence that may all too easily be unquestionably accepted and relied upon by jurors. 34 In cases involving similarly malleable evidence like audio and video recordings, New York has correctly decided that the question of authentication is not one of weight that should be left to jurors. Just as it is difficult for anyone other than an expert to detect whether "voices [were] transposed on tapes," E!J, 68 N.Y.2d at 529, "[t]here's absolutely no \vay !the average juror] can rel] rhc difference herwcen a doctored and a pure photo.'' Emily Nelson, Claims qi Photot'ake~y Get Lots of Exposure in Co11rt, \'\i:\U. ST. J., at B2 (Feb. 7, 1997) (quoting Bob Jennings, head of rhe Fvidence Photographers lnrernanonal Council). Thus, because alteration is often "difficult to detect, plain and simple," it is inappropriate to leave the question of authenticity to the 1ury. Parry, D~gital Alanipulation and Photographic Evidence, at 177-78; see alfO Guthrie & Mitchell, The Swinton Six, at 67 4 ("The fact that it is difficult, if not impossible, to identify modifications . . . heralds the need for heightened standards of admissibility of [digital imagery], particularly in the context of authentication"); Bronx Documentary Center, c\ltered Images: 150 Years of Posed and ~Ianipulated Documentary Photography, available at www.alteredimagesbdc.org/ (providing well-known and . . . pnze-wmnrng published examples of images that turned out to have been significantly altered, including by adding objects) (accessed Dec. 13, 201 35 The Court also has recognized the harm of exposing the jury to false images that they will presume arc real. Cf DzJAichel v. S. Bziffalo Ry. Co., 80 N.Y.2d 184, 196 (1992) (prejudice is likely from "apparent weight and authority" of video evidence later proven to be "distorted" because "it would be difficult to undo its initial impact and to erase the impression left in the minds of the jury members"). Indeed, the extraordinarily compelling nature of visual evidence is well accepted. "\s put by a leading treatise: "Seeing is believing," so real or demonstrative evidence can have special impact on the trier. ... Because evidence not dependent on a witness's credibility has a particularly persuasive effect, the dangers that the jury might overvalue it and be misled or that it might appeal to the jury's emotions rather than reason arc major considerations in the court's exercise of its discretionary power to exclude relevant evidence. l\L\RTIN, CAPRA, & ROSSI, NE\V YORK EVIDENCE I-L\NDBOOK, § 4.2, at 122-23 [2d ed.]. See also S11hlet v. State, 442 Md. 632, 656, 113 :\.3d 695, 709 (2015) (the role of judge as "gatekeeper" is essential to authentication because of jurors' tendency, "when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it") (quoting 7 J. \X11c;?YrORE, EVIDENCE,§ 2129 (Chadbourn Rev. 1978; emphasis in original)); Lucille A. Jewel, Through A Glass Dark/y: Brain Science and Vi.ma! FJ;etoric to Gain a Professional Perspective on 19 S. C\J,. lNTERDISC. 36 L.J. 237, 289, 293 (2010) ("\Vith visual information, people believe what they see and will not step back and critically examine the conclusions they reach, unless they arc explicitly motivated to do so[,] [which] conflicts with a bedrock principle of our legal system - that reasoned deliberation is necessary for a fair justice system"); Guthrie & Mitchell, The S1vinton Six, at 661, 670-71 ("jurors tend to focus primarily on visual, rather than oral, evidence" \vith one study showing they retained 65 percent of evidence "presented through a combination of oral and visual" methods versus only about 10 percent of evidence presented orally without visual aids). In short, "[pjicturcs say a thousand words .. \nd, thanks to new photo technology, it has never been easier for them to lie." Nelson, Claims ef Photof{1kery, at B2. The persuasive effect of photos and the inability of lay jurors to recogni?:e when they arc false warrants application of the same clear and convincing authentication standard that this Court requires for other easily altered yet compelling technological evidence, like audio and video recordings. There \Vas Insufficient Proof That rhe Photo of :\ppellant Holding a Gun and 1\loney \Vas Genuine and Unaltered. IZegardless of what standard of authenticity applies, this Court has approved three methods of authenticating photographs developed from negatives, ~yrnes, 33 N.Y.2d 343, video recordings, Patte1~wn, 93 N.Y.2d 80, and audio recordings. 68 N .Y.2d 520: (1) a witness with personal knowledge of 37 the events depicted; expert testimony that the evidence is unaltered; or (3) an unbroken chain of custody, which may "buttress [the evidence's] authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering." Patterson, 93 N.Y.2d at 84. None of these were utilized in appellant's case. Herc, the People's sole avowed puqJose 111 admitting the photo was to prove appellant's identity through his possession of the robbery weapon. According to the prosecutor, Louisma would identify the gun in the photo as the one used during the robbery, and this type of evidence had been admitted "on a very similar fact pattern" in People v. II/ebb, 60 A.D.3d 1291, 1292 (4th Dep't 2009) (upholding admission of a photo of the defendant with a shotgun because "a witness testified that the shotgun was the same as that used in the robberies charged in the indictment") C\. 70-71). In other words, the photo would be authenticated bv a witness with personal knowledge about the genuineness of \vhat it showed. Direct testimony by a witness with personal knowledge-such as familiarity \Vith what a photo portrays-is the simplest way to authenticate a social networking photo. See People v. Ntssell, 79 N.Y.2d 1024, 1025 (1992) (lay witnesses permitted to identify defendant, whom they knew personally, as bank robber m surveillance photos) (citing Byrnes, 33 N.Y.2d at 348). 38 This method of authentication failed, however, when Louisma was unable to identify the gun. Indeed, he refused to say it was the same gun, adding, "I didn't sav it was -- I said it was similar" (:\. 149; emphasis added). He candidly admitted that he was unfamiliar with guns and that any gun with a silver marking in the same location on the barrel would look similar to him. Nor was there any evidence in the record that the gun was so distinctive or unique that Louisma's testimony would be enough to support an inference that the gun was the same one. CJ i\1cGee, 49 N.Y.2d at 60 (approving authentication by witness with personal knowledge "when the object possesses unique characteristics or markings and any material alteration would be readily apparent") (internal quotation omitted). To the contrary, the gun in the photo bears a striking resemblance to the ever-popular "1911" pistol, which is available in various calibers, including 9- mm. (assuming Louisma's guess was correct). See David Bahde, Top Nine 9mm 1911 Gum, Personal Defense \X/orld (Oct. 2014), available at www.personaldefcnseworld.com/2014/10/ top-nine-9mm-1911-guns/#colt-de fender-2 (''the 1911 is selling in record numbers with no indication that will change any time soon" (accessed Dec. 22, 2015); Browning Product Catalog, 1911-380 Pistol, available at www.browning.com/products/ catalog/ family.asp? 39 wcbflag_ =035B&catalog_ =B ("'l'h \ ere arc few firearms that arc more recognizable than the iconic 1911 pistol," which, "despite the design being over 100 years old," "continues to be one of the most popular firearms") (accessed Dec. 22, 2015). The People never even attempted the second recognized form of authentication by calling an expert to testify that the photo had not been altered by, for example, photoshopping a gun into appellant's hand or appellant's face onto someone else's body. (/ ~yrnes, 33 N.Y.2d at 347-49 ("where no witnesses arc available who have viewed the subject matter portrayed, valid alternative grounds may exist for authenticating the photograph and admitting it into evidence, such as testimony, especially that by an expert, tending to establish that the photograph truly and accurately represents what was before the camera"). Sheehan admitted that she had no knowledge of the circumstances under which the photo was taken, and therefore had no idea whether it had been doctored 190-92, 224-25). People v. iWi!!s, Docket No. 293378, 2013 \VL 238676, at *12 (Mich. Ct. ;\pp. Jan. 22, 2013) (defendant properly precluded from using IYiySpace photos of deceased with guns to support justification defense because defendant did not know who took or posted them, "ha[d] no way of knowing if the photos were altered in any and could not "even 40 prove that the guns in the photos are real") (unreported opinion); People v. Lenihan, 30 Misc. 3d 289, 294 (Sup. Ct., Queens County 2010) ("In light of the ability to 'photo shop'[ or] edit photographs on the computer, defendant could not authenticate [J\fySpace] photographs" 111 order to impeach prosecution witnesses); Beckl~y, 185 Cal. .\pp. 4th at 514-16 (J\lySpace photo of defendant's girlfriend displaying gang hand signal improperly admitted because "no expert testified that [digital] picture was not a 'composite' or 'faked"'). Nor did the People demonstrate a chain of custody so as to show the absence of tampering with the photo. Under the chain of custody rubric, the proponent of a social networking photo could provide forensic proof that it originated from the person contesting its authenticity. For example, in People v. C!evenstine, 68 "\.D.3d 1448, 1450-51 (3d Dep't 2009), the Third Department held that J\lySpace instant messages between the defendant and two rape victims had been properly authenticated. In C!evenstine, the victims testified about their illicit J\fySpace conversations. Id. at 1450. "\n investigator retrieved the messages from the sisters' hard drive. Id. "legal compliance officer for MySpace explained that the messages ... had been exchanged by users of accounts created by defendant and the victims." Id. Finally, the defendant's wife had seen them on their shared computer. Id. at 1450-51. 41 Similarly, in an oft-cited case, Griffin, 19 :\.3d at 427, the Maryland Court of ,\ppeals suggested searching a computer's "internet history and hard drive to determrne whether [it] was used to originate the social networking profile and posting in question," "since a user unwittingly leaves an evidentiary trail on her computer" (quotations and citations omitted). See also Smith, 136 So. 3d at 433 (business records could show that a posting originated from a particular computer or cell phone); Commonwealth v. Pur4y, 459 fvfass. 442, 450-51, 945 N.E.2d 372, 381 (Mass. 2011) (emails were found on defendant's computer's hard drive, "to which he supplied all necessary passwords"). Tn this case, the People failed to establish any chain of custody or present any forensic evidence that the photo originated from appellant. They made no effort to show that be personally had registered as user Pricc_oneofkind on blackplanet.com, nor did they show that the photo was posted from an internet domain linked to his personal computer or cell phone. CJ Clevemtine, 68 ;\.D.3d at 1450-51 (r..IySpace "legal compliance officer" verified that messages came from account "created bv defendant" and defendant's wife saw them on his computer); see a!ro United States v. Hassan, 742 F.3d 104, 132-33 (4th Cir. 2014) (prosecution satisfied burden "by tracking the Facebook pages and Facebook accounts to [defendants'] mailing and email addresses via internet protocol addresses"); Damiano Beltrami, I'm Innocent. Just 42 Check 1\i{y Status on Facebook., N.Y. TL\IES, at ,\27 (Nov. 12, 2009) (robbery charges dismissed after subpoenaed Facebook records confirmed that post on defendant's profile page that appeared to be authored by him originated from his father's apartment at the time of the crime). Indeed, the People never even tried to get a warrant to search appellant's computer or contacted the company behind blackplanet.com in an effort to obtain any forensic evidence whatsoever. Accordingly, as defense counsel cogently argued when the People first showed the picture to the court, there was no evidence as to when the photo was taken, who created it or posted it online, or that it had not been altered since its creation. Concededly, the list of acceptable authentication methods-direct, expert, or forensic proof-was not intended to be exhaustive. See Patterson, 93 N.Y.2d at 84-85; BJnzes, 33 N. Y.2d at 349. In this case, there is no reason the People could not have conducted a timely investigation into whether appellant had any social media accounts and produced any available forensic evidence. Had they done so, they could have subpoenaed internet records or obtained a search warrant for appellant's computer and/ or cell phone. Civen their considerable resources, holding the People to the traditional authentication methods would be consistent with this Court's general disapproval of procedural shortcuts. The "need for responsible accuracy and 43 careful reliabilitv should not be sacrificed to some of the whims and ' weaknesses of fast moving and rapidly changing technology." Patterson, 93 N.Y.2d at 84; see also !i7i/liavzs, 926 N.L~.2d at 1172 (",\nalogizing a 11\fyspace \'Veb page to a telephone call, a witness's testimony that he or she has received an incoming call from a person claiming to be ',\,' without more, is insufficient evidence to admit the call as a conversation with 'A."'). Reliance on circumstantial evidence in lieu of one of the accepted, traditional authentication methods is appropriate only when the proponent of social networking photos is a parry with limited investigative powers who is unable to obtain social media records or physical evidence from a hard drive, and no witness with personal knowledge is available or cooperative. In that case, circumstantial evidence that links the photo and the person against whom it is used strikes a fair balance between admitting relevant evidence and providing adequate assurance of reliability. Even were circumstantial evidence a permissible method of authenticating a social networking photo the People seek to admit, moreover, such evidence would have to establish that the defendant had reason to know the photo was posted on the internet and never protested the posting or otherwise suggested the photo was fake. See Gibson, 2015 \'VL 1962850 at * 15 ("display[ingJ certain photographs on the publicly accl'.ssible portions of the 44 accounts suggests that the [account] owners did not consider the p1ctures misleading or falsified"). This could be established bv evidence that the defendant used a social networking account to "like" (on Facebook), comment, or otherwise endorse the photo, whether the photo was on his own social networking page or a third party's page. To impute knowledge and acceptance of a photo simply because it is displayed on what purports to be the defendant's social networking page, without his or her express acknowledgement, requires evidence that establishes that the defendant in fact used that account. No such evidence was presented here. Notably, even courts that readily accept circumstantial evidence to authenticate social networking postings have held the sort of evidence presented in the instant case to be insufficient. Nothing linked appellant to the blackplanet.com photo other than his face and last name, and the mere fact that a printout displays a person's name and picture is not enough. As one court explained in Derinc~ v. State, 465 S.\v'.3d 668, 671 (Tex. Crim. App. 201 "because anvone can establish a fictitious profile under any name," and "a person may gam access to another person's account by obtaining the user's name and password," the fact "that an electronic commurncauon on its face purports to ongrnate from a certain person's social networking account 1s 45 generally insufficient, standing alone, to authenticate that person as the author of the communication." See also Sv1ith, 136 So. 3d at 433 ("The case with which defendants and alleged victims alike could fabricate a social media account to corroborate a story necessitates more than a simple name and photograph to sufficiently link the communication to the purported author"); Purr!J, 945 N.E.2d at 381 (that an e-mail or social networking website "bears the defendant's name is not sufficient alone"; "[t]herc must be some 'confirming circumstances"'); Layshock ex rel. Lgshock v. Hermitage School Dist., 650 F.3d 205, 207-08 (3d Cir. 2011) (17-year-old high school student created "parody profile" of principal on rvf ySpace by providing fake personal information about him and posting a photograph of him from the school's website with a "simple 'cut and paste' operation"). "\lthough Detective Sheehan said that the user's age and hometown were listed on the wcbpage, the printout docs not show this, and Sheehan did not say what the user's age and hometown were or indicate whether they corresponded to appellant's age and hometown. CJ. Bm~~ess v. State, 292 Ca. 821, 823-24, 742 S.E.2d 464, 467 (2013) (J\lySpace profile page with incriminating photo was properly authenticated when officer testified about how he discovered it and compared known photos of defendant to images on 46 profile, and the page accuratelv represented defendant's age and our-of-state hometown) (emphasis added). Tn any event, basic biographical information such as age or hometown displayed alongside a name and photograph has been held msufficient, since such information is often widely known about the person in whose name the social networking profile was created. See Griffin, 19 A.3d at 424 ("The potential for abuse and manipulation ... leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site"). Even proof of account ownership alone has been held insufficient to establish authorship, endorsement, or knowledge of a photo, given the ease with which accounts may be accessed by others. State v. Eleck, 130 Conn. App. 632, 642, 23 J\.3d 818, 824 (Conn. i\pp. Ct. 2011) (that witness "held and managed [Facebook] account" was not sufficient foundation for admitting printout; it was incumbent on proponent "to advance other foundational proof to authenticate that the proffered messages did, in fact, come from [her] and not simply from her Facebook account"); c/ iVloore v. State, 295 Ga. 709, 713, 763 S.E.2d 670, 67 4 (2014) (authentication evidence was sufficient when defendant admitted ownership of Facebook page, \vhich contained biographical 47 and personal information about him, and the messages he claimed were not genuine "matched the structure and style of the texts" defendant had previously sent to authenticating witness). Typically, appellate courts considering authentication of postings from a social networking site have analyzed the contents of the site itself, looking at whether it is listed under the real name of the purported creator, displays numerous photographs of or other identifying information about him or her, contains distinctive details such as the use of a nickname or postings in a style that matches text messages or emails known to have come from the purported creator, or is associated with his or her known friends and familv members. , For instance, in Cotton v. State, 297 Ca. 257, 259-60, 773 S.E.2d 242, 245 (2015), the Ceorgia Supreme Court held that Faccbook messages were properly authenticated by the dcceascd's mother, who knew that the defendant's h1ccbook alias was his nickname from videos he appeared in and posted using the same name on YouTubc, observed that the defendant's friends and family were friends with the Faccbook account under his alias, and testified to conversing with him through that account. See afro Gibson, 2015 \X7TJ 1962850 at *1-2, 12-16 ("unique street names, gang terminology, photos, artwork, and gang signs utilized on the subject public Facebook profile pages in conjunction with both direct and circumstantial evidence of the proposed owners' gang 48 affiliation" supported attributing pages and their incriminating contents to defendant and his accomplices); LV7ilson v. State, 30 N.E.3d 1264, 1269 (Ind. Ct. App. 201 ("taken together, the \vitncss testimony identifying the Twitter account as belonging to [defendant] and the content posted on the account, including pictures and gang references, arc more than sufficient to authenticate the Twitter posts as being authored by [him]"); 1V1oore, 763 S.E.2d at 674 (Facebook page belonged to nickname known to witness as defendant and page contained defendant's hometown, phone number, and personal details and references to his friends and family). Herc, Detective Sheehan said that she saw other photos of appellant on the website, but did not describe them, and thev were not introduced into , evidence. Sheehan also failed to describe anv detailed information on the account about appellant or any distinctive style of the postings that made it highly likely he created and/ or used it. Nor did she tic the contents of the website to any other account that belonged to appellant, or testify that the content of the site reflected appellant's known activities or acquaintances. Her evidence thus fell far short of the critical corroborative detail provided in Cotton, 773 S.E.2d at 245, Gibson, 2015 \VL 1962850 at 16, W'.ilson, 30 N.E.3d at 1269, or 1\iloore, 763 S.E.2d at 674. 49 To conclude, no matter what standard applies, and even excusing the People's failure to produce the sort of expert or forensic evidence that should have been readily available to them, the scant circumstantial evidence they presented was woefully inadequate to support their claims that appellant had posted the photo or that the website belonged to him. See United States v. V 0'ner, 769 F.3d 125, 132 (2d Cir. 2014) (under F.R.E. 901 (b)(4), "mere fact that a page with [defendant's] name and photograph happened to exist on the Internet ... does not permit a reasonable conclusion that this page was created by the defendant or on his behalf," and page's "contents or 'distinctive characteristics"' were not enough to tie the page to defendant since the information "was also known by [accomplice] and likely others"); United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) (internet postings not admissible to prove racism by white supremacist group because proponent failed to establish authorship by the group). :\ppellant's authentication claim was preserved by defense counsel's repeated objections to the lack of foundation 71 5, 192). Specifically, he cited l~ymes, 33 N.Y.2d 343, for the proposition that the People had to prove "that the picture is a fair and accurate representation," and argued there was no evidence "as to when that picture was taken, who took it," "how [it] got on the website," or whether [had] been doctored in any way whatsoever" 71 50 74). \'Vhen the court responded that there would be testimony that the website referred to appellant "by both face and name," counsel urged the court to require Detective Sheehan to first "testify outside the presence of the jury," because the website's contents would be "highly prejudicial" ("\. 73). Counsel also argued that there was no reference to appellant's full name (~\. 74), while the People maintained that this "public photo" was on "defendant's profile page" (A. 7 6-78). Defense counsel renewed his objection that the People failed to lay a proper foundation when the photo was admitted through Detective Sheehan (A. 192). Because this evidentiary error was not harmless (see (C), posf), it alone requires that appellant's conviction be reversed and a new trial ordered B. The Photograph of "\ppellant with a Gun and Money at His Trial for Armed Robbery Constituted Extraordinarily Prejudicial Uncharged Crime Evidence That Had No Probative Value, and Was Therefore Not Admissible. I ~ven a properly authenticated photograph must be excluded from evidence if it lacks probative value or if its prejudicial impact outweighs its probative value. ;\ defendant's possession of a gun constitutes evidence of a prior crime or bad act and is generally inadmissible unless directly probative of a material fact in issue at trial. See P.L. § 265.01(1) (crin1i11alizing possession of " fi ") any 1rc.:arm . _\nd a photo of the defendant with a gun and money is extraordinarily prejudicial at a trial for armed robbc.:ry. \'{/ithout proof that the 51 gun depicted in the photo was the one used in the robbery, the photo lacked probative value and its admission served only the forbidden and highly prejudicial purpose of portraying him as someone with a crimmal and violent propensity. Evidence is relevant, and thus admissible, only if it "tends to prove the existence or non-existence of a material fact, i.e., a fact directlv at issue 1n a 0 case." People v. Primo, 96 N.Y.2d 351, 355 (2001). In particular, evidence of uncharged criminal conduct is not admissible unless it can "logically be linked to some specific material issue in the case." People v. H11~y, 73 N.Y.2d 40, 54 (1988); accord People v. Resek, 3 N.Y.3d 385, 390 (2004) ("we begin with the premise that uncharged crimes arc inadmissible and, from there, carve out exceptions"); People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981 ). The exclusion of evidence of prior crimes or bad acts 1s meant to "eliminate the risk that a jury, not fully convinced of the defendant's guilt of the crime charged may, nevertheless, find against him because his conduct generally merits punishment." People l'. · , 48 N.Y.2d 40, 46 (1979); People v. Afo!ineHx, 168 N.Y. 264, 250 (1901). '.\loreovcr, "propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant's prior crimes rather than on the evidence-or lack of evidence-relating to the case before it." 1, Ro1i/,,. n 7 '' v ')cl 32 2" 27 1?001\. ·ee -1··0 ~.r.i: .. ,e;·v 168 "~ 'r' 'it 0)~13 /, :;01.1, JI ~"· l .L. l , .JU-.J \~ J ), J. U/J 1VlU!t!t f~'-, l'\J .. , • . 52 Even if uncharged crimes evidence is directly probative of a defendant's guilt, moreover, the court must not admit it unless its probative value is high enough to outweigh the significant prejudice that it will necessarily inject into the trial. Hu~y, 73 N.Y.2d at 55 ("two-part inquiry" requires proof that the uncharged crimes evidence is relevant and a balancing of relevance against prejudicial effect); Allweiss, 48 N.Y.2d at 47 (even if facially admissible pursuant to a ivlolinmx exception, evidence will still be excluded if it is "actually of slight value when compared to the possible prejudice to the accused"); People v. Alvino, 71 N.Y.2d 233, 242 (1987) (probative value must exceed potential for prejudice). \Xlhen prior crimes evidence is offered to prove identity, as in this case, the prior misconduct must be sufficiently unique and similar to the charged crime for it to be probative of identity, not just propensity. ;\s the Court wrote in 1V1olineHX The very fact that it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime proves the dangerous tendency of such evidence to convict, not upon the evidence of the crime charged, but upon the superadded evidence of the previous crime. Hence, our courts have been proverbially careful to subject such evidence to the most rigid scrutiny, and have invariably excluded it in cases where its relevancy and competency was not =~CJ- shown. 168 N.Y. at 313-14 (emphasis added). 53 Thus, our courts have admitted evidence that clearlv established a defendant's use of the same gun to prove his identity as to the charged crime. People v. Condon, 26 N.Y.2d 139, 141 (1970) (ballistics evidence showed that pistol found in defendant's car after robbery a week later was "the very one used in both robberies"); People v. I-Ii!!, 198 N.Y. 64 (1910) (proof that defendant was complicit in very recent theft of revolvers, one found at a murder scene and another assumed to have caused the death, was admissible as to identity); People v. Broum, 13 A.D.3d 145, 146 (1st Dep't 2004) (proper to admit "evidence of an uncharged crime in which defendant used a pistol that was scientifically established to be the same weapon used in the charged . ") cn1nes . In contrast to the proven identity of weapons in Condon, Hill, and Brown, it is an abuse of discretion to admit evidence that a defendant has been seen merely with a similar or same caliber handgun within months of the crime. People v. 1\i[yers, 105 "\.D.3d 1250, 1251 (3d Dep't 2013) (similar .25 caliber gun two-and-a-half months before charged crime), cifj'd, 22 N.Y.3d 1010, 1011 (2013). See a!w People v. Zackorvitz, 254 N.Y. 192, 196 (1930) (defendant's ownership of guns not brought to scene of homicide, "if it ha[dj any relevance at all, ha[d] relevance only as indicating a general disposition to make use of them, ... [which was] \\:ithout relevance except as indicating a 'desperate type 54 of criminal,' a criminal affected with a murderous propensity"); People v. Paschall, 91 ,\.D.2d 645, 645 (2d Dep't 1982) ("that on some prior occasion defendant possessed a knife, without more," posed great potential for prejudice and was of only "slight and conjectural significance" in homicide involving knife). Although this Court has never addressed the admissibilitv of . photographic evidence of pnor gun possession, the Appellate Divisions have required proof that a gun held by a defendant in a photo was the same one used in the commission of the crime. Compare if/ehh, 60 A.D.3d at 1292 (photo of defendant holding shotgun admissible when witness testified it was the same one used in the charged robberies), with People v. Brown, 216 A.D.2d 737, 737-38 (3d Dep't 1995) (photo of defendant holding gun was inadmissible without authentication that gun was one of those at issue in weapon possession case). 3 In appellant's case, Louisma's equivocal identification of the gun in the photo as "similar" to the one used in the crime, made over a year-and-a-half later, simply did not establish that it was the robbery weapon. Louisma ' To the extent that some courts have held of of a weapon admissible, these cases all mYolYe an extremely short period of time between the uncharged possession and the charged crime. See People 11. 83 A.D.3d 859, 860 (2d Dep't 2011) (three days); People 11• Bmwn, 266 A.D.2d 863 (4th Dep't 1999) (four days); People v. Chamberlai11, 96 ~\.D.2d 959, 960 (3d Dcp't 1983) (t\vo weeks). Herc, the uncharged possession occurred at least four months before the robbery, and the photo was additionally prqudic1al 111 that it depicted appellant holding cash. In any event, the People may not rely on this basis for admission since thn did not raise it below and the court admitted the photo only as proof that appellant had the actual robbery weapon 1, C.P.L. § 15(1); People 11. 92 N.Y.2d 473 (19()8). 55 specifically stated during cross-examination, "I didn't sav it was -- I said it was similar" (:\. 149; emphasis added). Louisma admitted he had previously seen guns only on television, and that any black gun with silver in the same area would have looked the same to him (1\. 147-49). Given Louisma's testimony and the passage of at least four months between the taking of the photo and the robbery, this case is controlled by 1\!{yers: it was an abuse of discretion to admit evidence that, months earlier, appellant had possessed a similar gun. h[yers, 105 :\.D.3d at 1251, ajfd, 22 N.Y.3d at 1011. :\nd, again, the gun in the photo is indistinguishable from one of the most popular handguns available. Bahde, Top 1\Jine 9mm 1911 G'mzs; Browning Product Catalog, 1911-380 Pistol. \'Vithout a clear connection between the gun in the photo and the one used in the crime, the photo served no purpose other than to improperly portray [appellant] as a gun-carrying criminal and the only purpose served by [its] introduction into evidence was to persuade the jury that [appellant] "was a man of vicious and dangerous propensities." Zackozvi!z, 254 N. Y. at 196. Thus, even had the photo been properly authenticated (Im! see (A), ante), it should still have been excluded from evidence as irrelevant and unduly prejudicial. Appellant's claun that the photo was unduly prejudicial was preserved. \vhen the prosecutor first sought to admit the photo, she explicitly argued that "the probative value of this outweighs greatly any prejudicial effect," citing 56 Ivehb, 60 "\.D.3d 1291. Counsel objected to the jurors hearing the website address because it would be "entirely highly prejudicial" for them to "check it out themselves," to an officer testifying about the photo because "looking at it is highly prejudicial" 73). Counsel's objections may have been inartful, but his position-that the photo was "highly prejudicial"-was obvious. 4 This Court has repeatedly "decline[d] to ... elevate preservation to a formality that would bar an appeal even though the trial court ... had a full opportunity to review the issue in question." People v. Pinch, 23 N.Y.3d 408, 413 (2014) (quoting People v. Pqyne, 3 N.Y.3d 266, 273 (2004)). Between the People's clear statement of the correct standard of law that the court must balance prejudice against probative value, and defense counsel's repeated description of the photograph as "highly prejudicial" and request that Sheehan testify outside the jury's presence, the court undoubtedly "had a full opportunity to review the issue in question." f'znch, 23 N.Y.3d at 413; Payne, 3 :-J.Y.3d at 273. Regardless of the validity of the photo's authentication, the extraordinary prejudice caused by admission of the photo of appellant with a gun and money 4 ;\!though defense counsel subseciuentlv said, "that's not the issue," it is obvious that he meant only that the court need not reach that issue because the People could not get past the authenticity threshold . 71 57 denied appellant a fair trial and requires that his conviction be reversed and a new trial ordered. C The Erroneous Admission of the Photo \Vas Not Harmless. The harm of giving appellant's jury a photo of him posing with a gun and currencv, when the onlv other evidence at his trial for armed robberv was a ,; .I ,/ single witness's identification, cannot be overstated. This Court has joined many others, as well as eyewitness identification experts, in recognizing the pervasive problem of misidentification. See People v. Smztiqgo, 17 N.Y.3d 661, 669 (2011); see also United States v. Wade, 388 U.S. 218, 228 (1966); State v. Henderson, 208 N.J. 208, 218, 27 :\.3d 872, 878 (2011) ("it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country"); BENJ\MIN N. CARDOZO SCHOOL OF L\\V, YESHIVA UNIVERSnY, REVISITING J ,JNf \LTERED IMAGES Back to IMAGES BRONX DOCUMENTARY CENTER I WWW.BRONXDOC.ORG http ://www.alteredimagesbdc.org/#/tv-gu i de/ UNITED STATES AUGUST1989 PUBLISHED IN TV GUIDE REPRESENTATION: The 1989 TV Guide cover Oprah Winfrey atop a pile of money with the headline "Oprahl The Richest Woman on TV?" REALITY: In this image, the head of Oprah Winfrey was onto the 1960s movie star was noticed when fashion identified the dress supposedly worn by Oprah in the photograph; the image was created and published without either of the subjects' consent. Learn more: • Read The Atlantic's on the prev I next 1n2nf\1r.. 1f\.111 At.A I of 2 BRONX DOCUMENTARY CENTER 150 YEARS OF POSED AND MANIPULATED DOCUMENTARY PHOTOGRAPHY IMAGES VIDEO ABOUT VISIT #ALTEREDIMAGESBDC LAMBARENE, GABON (WEST AFRICA) PUBLISHED NOVEMBER 1954 PHOTO BY W. EUGENE SMITH REPRESENTATION Dr. AJbert Schweitzer at work with African laborers at his medical clinic in Gabon. This photo was in LIFE as: Schweitzer und a wutch " This was the lead in a photo essay on Schweitzer documentary Smith. REALITY Over 30 years its researcl1er Glenn Willumson found that Smith had combined two distinct to create the that was published in LIFE adding the silhouetted saw handle and human hand in the lower ht of the frame. W. Smith, considered a at the time of this and his ovvn \Nork and did not allow anyone else to ha11dle his This process made it for LIFE to detect the lation, which would have I 128120 l 6 11: I 0 AM .of2 violated their Learn more: • Go "Behind the Picture" with this TIM article copyright W Smith Back to IMAGES BRONX DOCUMENTARY CENTER I WWWBRONXDOCORG prev I next I /28120 J 6 I J : J 0 AM