The People, Respondent,v.Chris Price, Appellant.

Brief

N.Y.April 26, 2017

To be argued by ANASTASIA SPANAKOS (TIME REQUESTED: 25 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against CHRIS PRICE, Defendant-Appellant. W4444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W4444444444444444444444444444444444444444444 RICHARD A. BROWN District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286–5810 ROBERT J. MASTERS JOHN M. CASTELLANO JOSEPH N. FERDENZI ANASTASIA SPANAKOS Assistant District Attorneys Of Counsel JUNE 23, 2016 Queens County Indictment Number 1472/08 APL 2015-00211 TABLE OF CONTENTS Page No. TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 THE TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The Summations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 The Jury Notes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ARGUMENT THE PEOPLE ESTABLISHED THE AUTHENTICITY OF THE SOCIAL MEDIA EVIDENCE, DEFENDANT WAIVED HIS CLAIM THAT ITS PREJUDICIAL EFFECT OUTWEIGHED ITS PROBATIVE VALUE, AND ANY ERROR WAS HARMLESS. . . . . . . . . . . . . . . . . . . . . . 30 A. The People Established the Authenticity of the Social Media Evidence Under the Prevailing Standard Followed by an Overwhelming Majority of Jurisdictions. . . . . . . . . . . . . . . . . 34 i. While this Court has not yet considered the issue, the consensus among jurisdictions nationally requires the proponent of social media evidence to demonstrate that the exhibit accurately reflects the social media account and to attribute the account to the defendant. This standard is fully consistent with New York law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 ii. The People established an adequate foundation when they demonstrated that the exhibit was an accurate depiction of a relevant posting on what a reasonable court or juror could infer was defendant’s social media account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 iii. Defendant’s arguments to the contrary are largely unpreserved and entirely unavailing. . . . . . . . . . . . . . . . . . . . 58 B. Defendant Waived His Claim That the Exhibit Was Too Prejudicial When He Told the Court That the Probative Value Versus Prejudicial Effect Analysis Was “Not the Issue”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C. Any Error Was Harmless in Light of the Victim’s Unwavering Identification of Defendant, Which Resulted from His Close Attention to Defendant, Who Stood a Mere Arm’s Length Away Throughout this Broad-daylight Robbery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 ii TABLE OF AUTHORITIES Page No. Cases Ando v. Woodberry, 8 N.Y.2d 165 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Attorney General v. Firetog, 94 N.Y.2d 477 (2000) . . . . . . . . . . . . . . . . . . . . . . . 88 Bourjaily v. United States, 483 U.S. 171 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . 68 Burgess v. State, 292 Ga. 1 CA-CR 10-0900, 2012 WL3580488 *305 (Ariz. Ct. App. August 21, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 41, 84 Commonwealth. v. Purdy, 459 Mass. 442 (Mass. 2011). . . . . . . . . . . . . . 40, 68, 78 Commonwealth v. Williams, 537 Pa. 1 (Pa. 1994). . . . . . . . . . . . . . . . . . . . . . . . . 97 Commonwealth v. Campbell, 58 WOA 2014, 2015 WL 6167405 (Pa. Super. Ct. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Commonwealth v. Lee-Purvis, 2014 PA Super. Unpub. LEXIS 4249, 2014 WL 10986255(Pa. Super. Ct. February 7, 2014).. . . . . . . . . . . . 37n.10 Cunningham v. Fair Haven & W.R. Co., 72 Conn. 244 (Conn. 1899). . . . . . . . . . 83 Griffin v. State, 419 Md. 343 (Md. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 84 Hollis v. State, 223 Md.App. 773 (Md. Ct. Spec. App. 2015). . . . . . . . . . . . . 40, 44 Huddleston v. United States, 485 U.S. 681 (1988). . . . . . . . . . . . . . . . . . . . . . . . . 68 In re F.P., 878 A.2d 91 (Pa Super. Ct. 2005) .. . . . . . . . . . . . . . . . . . . . . . 40, 76, 85 In re L.P., 324 Ga. App. 78 (Ga. Ct. of App. 2013). . . . . . . . . . . . . . . . . . 42, 53, 57 Johnson v. Zerbst, 304 U.S. 458 (1938). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Kincade v. State, No. 63563, 2014 WL 6609504 (Nev. 2014).. . . . . . 60-61, 73, 84 Lego v. Twomey, 404 U.S. 477 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 iii Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71n.16 Matter of Barbara C., 64 N.Y.2d 866 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 O’Connor v. Newport Hospital, 111 A.3d 317 (R.I. 2015). . . . . . . . . . . . . . . . . . 69 O’Neil v. State, No. 1913, Sept. Term 2014, 2015 WL 6447254 (Md. Ct. Spec. App. 2015) . . . . . . . . . . . . . . . . . . . 40, 66 Parker v. State, 85 A.3d 682 (Del. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Pavlovih v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014).. . . . . . . . . . . . . . . . . . . . . . 70 People v. Agudelo, 96 A.D.3d 611 (1 Dept.), lv. denied, st 20 N.Y.3d 1095 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 People v. Alston, 77 A.D.3d 762 (2d Dept. 2010). . . . . . . . . . . . . . . . . . . . . . . . . 95 People v. Alvino, 71 N.Y.2d 233 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 People v. Aska, 91 N.Y.2d 979 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-51 People v. Augustine, 2016 ILApp(2d) 14158-U , 2016 WL 1035722 (Ill. App. Ct. March 14, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 People v. Beverly, 5 A.D.3d 862 (3d Dept. 2004). . . . . . . . . . . . . . . . . . . . . . . . . 76 People v. Bogoniewski, 206 A.D.2d 844 (4 Dept. 1994). . . . . . . . . . . . . . . . . . . 96th People v. Brown, 216 A.D.2d 737 (3d Dept. 1995) . . . . . . . . . . . . . . . . . . . . . . . . 98 People v. Brown, 266 A.D.2d 863 (4 Dept. 1999). . . . . . . . . . . . . . . . . . . . . . . . 95th People v. Byrnes, 33 N.Y.2d 343 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Clemmons, 83 A.D.3d 859 (2d Dept.), lv. denied, 19 N.Y.3d 971 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 People v. Clevenstine, 68 A.D.3d 1448 (3d Dept.) lv. denied, 14 N.Y.3d 799 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 People v. Condon, 26 N.Y.2d 139 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 iv People v. Costello, 128 A.D.3d 848 (2d Dept. 2015). . . . . . . . . . . . . . . . . . . . . . . 76 People v. Crimmins, 36 N.Y.2d 230 (1975). . . . . . . . . . . . . . . . . . . . . . . 14, 99, 100 People v. Davis, 43 N.Y.2d 17 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Downin, 357 Ill. App. 3d 193 (Ill. App. Ct. 2005). . . . . . . . . . . . . . . . . 44 People v. Dunbar Contracting Co., 215 N.Y. 416 (1915). . . . . . . . . . . . . . . passim People v. Ely, 68 N.Y.2d 520 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 People v. Graham, 25 N.Y.3d 994 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Grant, 7 N.Y.3d 421 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 People v. Graves, 85 N.Y.2d 1024 (1995). . . . . . . . . . . . . . . . . . . . . . . . . 81-82, 88 People v. Gray, 86 N.Y.2d 10 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Halter, 19 N.Y.3d 1046 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Hawkins, 11 N.Y.3d 484 (2008). . . . . . . . . . . . . . . . . . . . . 48, 60n.13, 88 People v. Jackson, 237 A.D.2d 620 (2d Dept. 1997) .. . . . . . . . . . . . . . . . . . . . . . 96 People v. Jackson, 70 N.Y.2d 884 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 People v. Julian, 41 N.Y.2d 340 (1977). . . . . . . . . . . . . . . . . . . . . . . . 37, 47, 48, 67 People v. Jurgins, 26 N.Y.3d 607 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Lane, 7 N.Y.3d 888 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 People v. Leach, 90 A.D.3d 1073 (2d Dept.), aff’d other grounds, 21 N.Y.3d 969 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 People v. Lewis, 5 N.Y. 3d 546 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 People v. Lewis, 69 N.Y.2d 321 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 92 People v. Liccione, 50 N.Y.2d 850 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Lynes, 49 N.Y.2d 286 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim v People v. Mack, ___N.Y.3d___, 2016 N.Y. Slip Op. 04321 (June 7, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 99 People v. Marks, 6 N.Y.2d 67 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108-109 People v. Martin, 50 N.Y.2d 1029 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. McGee, 49 N.Y.2d 48 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 67 People v. McMahen, Docket No. 324423, 2016 Mich. App. Lexis 637 at *17; 2016 WL 1230847 (Mich. Ct. App. March 29, 2016) . . . passim People v. Medina, 18 N.Y.3d 98 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Meyers, 22 N.Y.3d 1010 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 98 People v. Miller, 8 N.Y.3d 937 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 People v. Mills, 1 N.Y.3d 269 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 People v. Mills, 11 N.Y.3d 527(2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 People v. Miranda, 27 N.Y.3d 931 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 88 People v. Mirenda, 23 N.Y.2d 439 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Molineux, 168 N.Y. 264 (1901). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Morris, ___N.Y.3d___, 2016 N.Y. Slip Op. 04327 (June 7, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 99 People v. Nelson, ___ N.Y.3d __, 2016 N.Y. Slip Op. 02554 (April 5, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 People v. Nevado, 22 A.D.3d 383 (1 Dept. 2005).. . . . . . . . . . . . . . . . . . . . . . . . 76st People v. Patterson, 93 N.Y.2d 80 (1999) . . . . . . . . . . . . . . . . . . . . . . 30n.8, 58, 92 People v. Petty, 7 N.Y.3d 277 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 People v. Pierre, 41 A.D.3d 289 (1 Dept. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . 66st People v. Prescott, 66 N.Y.2d 216 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 vi People v. Price, 127 A.D.3d 995 (2d Dept. 2015). . . . . . . . . . . . . . . . . . . . . . . . 4, 5 People v. Price, 25 N.Y.3d 1206 (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Racks, 125 A.D.3d 692 (2d Dept. 2015). . . . . . . . . . . . . . . . . . . . . . . . . 76 People v. Ramos, 99 N.Y.2d 27 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 People v. Rayam, 94 N.Y.2d 557 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 107-108 People v. Reynolds, ___N.Y.3d___, 2016 N.Y. Slip Op. 04323 (June 7, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Rice, 75 N.Y.2d 929 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 105 People v. Rivera, 184 A.D.2d 153 (1 Dept. 1993). . . . . . . . . . . . . . . . . . . . . . . . 76st People v. Rivera, 281 A.D.2d 702 (3d Dept. 2001). . . . . . . . . . . . . . . . . . . . . . . . 96 People v. Rodriguez, 50 N.Y.2d 553 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 People v. Scarola, 71 N.Y.2d 769 (1988). . . . . . . . . . . . . . . . . . . . . . . 45, 46, 51, 92 People v. Schaeffer, 56 N.Y.2d 448 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 People v. Shabazz, 99 N.Y.2d 634 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 People v. Sheriff, 234 A.D.2d 894 (4 Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 95th People v. Smith, 16 N.Y.3d 786 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 People v. Thomas, 53 N.Y.2d 338 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 People v. Tucker, 55 N.Y.2d 1 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 People v. Turriago, 90 N.Y.2d 77 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Valdez, 201 Cal. App. 4 1429 (4 Dist. 2011). . . . . . . . . . 11, 40, 54, 71th th People v. Ventimiglia, 52 N.Y.2d 350 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Vidal, 26 N.Y.2d 249 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 vii People v. Wallace, __ N.Y.3d __, 2016 N.Y. Slip. Op. 03210 (April 28, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 88 People v. Webb, 60 A.D.3d 1291 (4 Dept. 2009). . . . . . . . . . . . . . . . . . . . . . 20, 95th People v. Wells, 15 N.Y.3d 927 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 People v. Wilder, 93 N.Y.2d 352 (1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 People v. Williams, 27 N.Y.3d 212 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Zackowitz, 254 N.Y. 192 (1930). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Rodriguez v. State, 273 P.3d 845 (Nev. 2012) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Simmons v. Commonwealth, 2012-SC-0000645-MR, 2013 WL 674721 (Ky. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Smith v. State, 135 So.3d 424 (Fla. Dist. Ct. App. 2014). . . . . . . . . . . . . . . . . . . . 69 Smoot v. State, 316 Ga.App. 102 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim State v. Assi, 2012 1 CA-CR 10-0900, 2012 WL 3580488 (Ariz. Ct. App. August 21, 2012) .. . . . . . . . . . . . . . . . . . . . . . . 40, 66, 78, 96 State v. Barnes, et al., 803 F.3d 209 (5th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . 71 State v. Bell, CA 2008-05-044, 2009 WL 1395857 (Ohio Ct. App. May 18, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 37n.10, 78 State v. Burns, M 2014-00357-CCA-R3-CV, 2015 WL 2105543 (Tenn. Ct. Crim. App. May 5, 2015). . . . . . . . . . . . . . . 77 State v. Eleck, 130 Conn.App. 632 (Conn. App. Ct. 2011). . . . . . . . . . . . . . . 66, 71 State v. Ford, 782 S.E.2d 98 (N.C. Ct. App. 2016). . . . . . . . . . . . . . . . . . . . passim State v. Jones, 318 P.3d 1020 (Kan. Ct. App. 2014). . . . . . . 37n.10, 38, 73, 77, 84 State v. Koch, 157 Idaho 89 (Idaho 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40 State v. Palermo, 129 A.3d 1020 (N.H. 2015). . . . . . . . . . . . . . . . . . . . . . 43, 69, 77 State v. Paster, 15 N.E.3d 1252 (Ohio Ct. Of Appeals 2014). . . . . . . . . . . . 37n.10 viii State v. Snow, 437 S.W.3d 396 (Mo. Ct. App. 2014) . . . . . . . . . . . . . . . . . . . 77, 83 Sublet v. State, 442 Md. 632 (Md. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Texas v. Cobb, 532 U.S. 162 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . passim United States v. Bansal, 663 F.3d 634 (3d Cir. 2011) . . . . . . . . . . . . . . . . . . 37n.10 United States v. Barnes, 803 F.3d 209 (5 Cir. 2015). . . . . . . . . . . . . . . . . . . . . . 43th United States v. Brinson, 772 F.23d 1314 (10 Cir. 2014).. . . . . . . . . . . . . . . . . . 68th United States v. Chin, 371 F.3d 31 (2d Cir. 2004) .. . . . . . . . . . . . . . . 43, 44, 72, 77 United States v. Hassan, 742 F.3d 104 (4 Cir 2014). . . . . . . . . . . . . . . . . . . . . . 70th United States v. Jackson, United States v. Jenkins, 313 F.3d 549 (10 Cir. 2002) . . . . . . . . . . . . . . . . . . . . 96th United States v. Mackey, 249 Fed. Appx. 420 (6 Cir. 2007). . . . . . . . . . . . . . . . 96th United States v. Powell, 469 U.S. 57 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 United States v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006). . . . . . . . . . . . . . . . . 78 United States v. Vayner, 769 F.3d 125 (2d Cir. 2014). . . . . . . . . . . . . . . . . . passim Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015). . . . . . . . . . 40, 43, 70, 77, 85 Statutes C.P.L. § 450.90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 C.P.L. § 470.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim C.P.L. § 470.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 62, 99 Penal Law § 160.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Penal Law § 160.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 ix Other Authorities Edith L. Fisch, Fisch on New York Evidence, § 4 (2d Ed. 1977). . . . . . . . 45-46, 47 Edward J. Imwinkelried, Evidentiary Foundations, § 4.02(6) (9 Ed. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 39, 43, 51th Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues, 19 Rich. J.L. & Tech 11 (2013). . . . . 78-79 Kenneth S. Broun, ET. AL, McCormack on Evidence § 227, p. 105 (7 Ed. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 46, 52, 83th Michael M. Martin, Daniel J. Capra, Faust F. Rossi, New York Evidence Handbook, § 1.5.1 (2d Ed. 2003). . . . . . . . . . 9, 46, 64, 67, 68n.15 Paul W. Grimm, ET. AL., Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433 (Spring 2013). . . . . . . . . . . . . . . . 71n.16, 79n.17 R.T. Farrell, Prince, Richardson on Evidence, § 4-101 (11 Ed. 1995) . . . . . 45, 92th Randolph N. Jonakait, et al., New York Evidentiary Foundations, (2d Ed. Supp. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37 Robert A. Barker and Vincent C. Alexander, Evidence in New York and Federal Courts, (2d Ed. 2011). . . . . . . . . . . . . . . 9, 47, 64, 67 Schoen, David I., The Authentication of Social Media Postings, ABA, Section of Litigation, Trial Evidence (May 17, 2011). . . . . . . . passim Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 2 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 x COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : CHRIS PRICE, : Defendant-Appellant. : -------------------------------------------------------------------- x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Eugene M. Fahey, Associate Judge of the Court of Appeals, defendant appeals from an April 15, 2015, order of the Appellate Division, Second Department, affirming a November 13, 2009, judgment of the Supreme Court, Queens County (Hollie, J.). By that judgment, defendant was convicted after a jury trial of Robbery in the First Degree (Penal Law § 160.15[4][“displays what appears to be” a firearm]) and Robbery in the Second Degree (Penal Law § 160.10[1][aided by another]) and was sentenced to two concurrent terms of seven years in prison to be followed by five years of post-release supervision. Defendant is currently incarcerated pursuant to this judgment of conviction, and an unrelated judgment of conviction for which he received two concurrent twelve and one-half year sentences to be followed by five years of post- release supervision, as well as a subsequently received judgment of conviction for Attempted Promoting Prison Contraband in the First Degree for which he received of sentence of from eighteen months to three years of incarceration. INTRODUCTION On March 24, 2008, defendant and an accomplice robbed Emmanuel Louisma, a milk delivery man who was nearing the end of his route, outside a public school in Queens at about 10:15 a.m. Mr. Louisma noticed defendant and his accomplice as soon as they walked by, on a clear sunny day. Shortly thereafter, defendant approached Mr. Louisma, stood right in front of him, and while only a few feet away, pulled out a gun and told Louisma, “Yo, you know what time it is, give it up.” When Mr. Louisma feigned that he did not understand it was a robbery, defendant pointed the gun at his chest. The gun looked like a nine millimeter automatic handgun and bore two different colors; it was predominantly black but included a separate, distinct silver portion on the top. Mr. Louisma took money from his pocket and threw it to the ground. Defendant’s accomplice picked up the money, then fled with defendant in a waiting car. On June 9, 2008, defendant was identified in a lineup and charged with Robbery in the First Degree (Penal Law § 165.15[4]) and two counts of Robbery in the Second Degree (Penal Law § 165.10[1] & [2b])(Queens County Indictment Number 1472/08). 2 At trial, defendant disputed his identity as the robber, and the People sought to corroborate the victim’s identification by introducing a posting from defendant’s social media account on “blackplanet.com.” The posting consisted of a picture, which had been uploaded four months prior to the crime, of defendant holding a predominantly black nine millimeter gun with a silver ejection port on the top, just like the gun used in the robbery. Defendant objected, alleging that the People would be unable to authenticate the exhibit. He also told the court that whether the photo’s prejudicial effect outweighed its probative value was “not the issue” (A:71). The court deferred decision, stating that it would allow the People to attempt to elicit a foundation. The People’s testimonial foundation consisted of two parts. First, the People showed through the testimony of the investigating detective that the exhibit – a printout of the image – accurately reflected what was contained on the webpage. Second, the People sought to show, circumstantially, that the social media webpage belonged to defendant. As to this showing, the People presented evidence that the username included defendant’s last name, that the username was listed on the social media website with a single profile picture – that of defendant – and that the website contained 24 other pictures, each of which depicted defendant. Mr. Louisma, who was shown only the portion of the photo containing the gun, testified that it was 3 “similar to the gun that took place in the robbery,” including the “the silver piece on top,” the barrel of the gun, and the size of the gun (A: 118, 131, 148-49). The court allowed the posting into evidence based on this foundation, over defendant’s objection that the detective presented no other evidence of the ownership of the website or of who took the photo or whether it was a genuine depiction of defendant. Defendant did not call any expert to suggest that the website was other than defendant’s or that the photo was doctored, nor did he suggest to the court any motive on the part of anyone to create a fraudulent website in defendant’s name or to doctor such a picture. Defendant argued to the jury that the origin of the photo was unclear and that anyone could have doctored or posted it. The People, for their part, asked the jurors to use their common sense to conclude that the social media webpage belonged to defendant, arguing that the person whose name, profile picture, and numerous additional pictures are contained on a webpage is, logically, the person who created and maintained the page. At the conclusion of trial, defendant was convicted and sentenced as noted above. On April 15, 2015, the Appellate Division affirmed defendant’s conviction. People v. Price, 127 A.D.3d 995 (2d Dept. 2015). The court ruled, as relevant here, that the trial court properly admitted the photograph because the People 4 laid the proper foundation, the photo was relevant to defendant’s identity as the gunman, and its probative value outweighed any prejudice. Price, 127 A.D.3d at 996. On July 28, 2015, the Honorable Eugene M. Fahey granted defendant leave to appeal from the Appellate Division’s order. People v. Price, 25 N.Y.3d 1206 (2015). SUMMARY OF ARGUMENT The trial court properly admitted the posting from defendant’s “blackplanet.com” social media profile. The posting consisted of a picture of defendant with a weapon that resembled the gun used in the robbery not only as to its general appearance, size, type and caliber, but also as to its unusual two-tone coloring, predominantly black with a silver-colored ejection port on top. The People properly authenticated the exhibit, showing that the item they sought to introduce before the jury – a printout from the social media account – accurately reflected what was on that webpage, and establishing, by circumstantial evidence, that the account under which the posting appeared belonged to defendant. This latter showing included testimony that defendant’s last name was part of the account username, that the single profile picture used to identify the owner of the account was a picture of defendant, and that there were 24 additional pictures on the social media page, all of which were of defendant. No more was legally required. 5 While this Court has not directly addressed the foundation necessary to introduce a social media posting, numerous courts in jurisdictions around the country have addressed the issue and a national consensus has emerged: the authenticity of social media evidence is established by demonstrating that the exhibit is an accurate copy of the social media posting and that the social media account or profile is attributable to the defendant. Schoen, David I., The Authentication of Social Media Postings, ABA, Section of Litigation, Trial Evidence (May 17, 2011) (“Schoen”). 1 2 The latter showing may be made, in almost all jurisdictions, by circumstantial evidence, and testimony from a representative of the social media company is not required. Id. See, e.g., United States v. Vayner, 769 F.3d 125 (2d Cir. 2014); Sublet v. State, 442 Md. 632, 676 (Md. 2015). In addition, the proponent need only adduce evidence from which a reasonable juror could conclude that the item is what it purports to be, and need not preclude all possibility of tampering. See, e.g., Parker v. State, 85 A.3d 682, 687 (Del. 2014); Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). Available at https://apps.americanbar.org/litigation/ committees/trialevidence/1 articles/051711-authentication-social-media.html (accessed June 2, 2016). Here, and in many of the cases cited herein, the relevance of the posting stems from2 defendant’s authorship of it but a posting authored by a different social media user could be relevant based upon the facts of a particular case. For instance, a defendant may seek to admit a posting attributable to the victim or an eyewitness to a purported crime. 6 This is precisely the showing the People made here. First, the investigating detective testified that the exhibit that the prosecution wished to introduce in court – a printout from the webpage – accurately depicted what was on the social media website. Second, the detective testified to the connection between the defendant and the webpage to establish, circumstantially, that the webpage belonged to the defendant. This included the testimony that the username included the defendant’s last name, that the profile picture – a picture chosen by the owner to identify him or herself to others – was a picture of the defendant, and that the social media webpage accessed by clicking on this username and profile picture contained 24 additional pictures, all of defendant. These circumstances, taken together, provided a reasonable basis for a juror to believe that the social media account from which the printout was produced was defendant’s – the person depicted in the profile picture of the owner and in all of the other 24 pictures on the account. Defendant, however, suggests that this showing is inadequate because it is inconsistent with New York law. He argues that the foundation for real evidence must be established by clear and convincing evidence (Def. Br. at 29-30), and that the People cannot use circumstantial evidence to authenticate it (Def. Br. at 34, 37-44). These arguments are unpreserved and meritless. At no point during the colloquy with the court on the admission of the exhibit, either in the preliminary discussion or at the 7 time of its admission, did defendant argue that the People had the burden of establishing the foundation by clear and convincing evidence. Similarly, defendant did not argue, as he does now, that the People’s showing could not be made by circumstantial evidence. Having failed to raise these issues in the trial court, he cannot raise them in this Court. People v. Shabazz, 99 N.Y.2d 634 (2003); People v. Martin, 50 N.Y.2d 1029 (1980). Moreover, New York law is fully consistent with the national standard. This Court long ago held that an exhibit consisting of real evidence that is purportedly connected to the defendant may be authenticated by “adding together a number of circumstances, each of which by itself might be common . . but which, when viewed together, make it more than probable” that the item belongs to the defendant. People v. Mirenda, 23 N.Y.2d 439 (1969). The proponent need only show that “the connection between the object and the defendant . . . is not so tenuous as to be improbable.” Id. at 453. And, even where the showing is circumstantial in nature, admission need not be based “upon a showing that the evidence adduced permits only one inference.” Id. This Court has also made clear that whether evidence has “been sufficiently authenticated [is] a question of fact to be disposed of preliminarily by the trial judge, and unless there was a total absence of evidence, this 8 court is without power to reverse his ruling.” People v. Dunbar Contracting Co., 215 N.Y. 416 (1915). While it is true that this Court has, on two occasions, used the phrase “clear and convincing” evidence in connection with authentication, both times in cases in which audio recordings were in issue, the Court has been inconsistent in its invocation of that standard, as many commentators have observed. Robert A. Barker and Vincent C. Alexander, Evidence in New York and Federal Courts, § 9.1, p. 359 (2d Ed. 2011) (“Barker”); Michael M. Martin, Daniel J. Capro, and Faust F. Rossi, New York Evidence Handbook, § 4.2, p. 116 (2d. Ed. 2003) (“Martin”). Moreover, this Court has always made clear, whatever the nomenclature, that the proponent need not exclude the possibility that the evidence may be attributable to someone other than the defendant. See Mirenda, 23 N.Y.2d at 453-54; see also People v. Lynes, 49 N.Y.2d 286, 292 (1980) (“Judge who presides over the trial must determine that the proffered proof permits the drawing of inferences which make it improbable that the caller’s voice belongs to anyone other than the purported caller”; emphasis added); People v. Dunbar Constructing Co., 215 N.Y. at 422-23 (letter and phone conversation sufficiently authenticated even though authenticating witness stated on cross that voice identification was a “guess” and typewritten letter concluded with signature in handwriting of someone other than defendant). Thus, defendant’s 9 arguments that New York law precludes the type of showing made here and accepted nationally is simply wrong. Defendant also argues that the posting could not be introduced because it consisted of a photograph, and neither the person who took the photo nor someone who saw what was depicted in it testified that it was a fair and accurate representation of what the photo shows. But defendant misunderstands the nature and relevance of the social media evidence in this case, and perhaps social media evidence altogether. Social media evidence, whether it consists of a statement, drawing, link, or photo, signals the owner’s awareness of and familiarity with the item that appears on the webpage. Thus, regardless of whether a photo such as the one here has been altered to appear as it does, the fact that the owner has posted the photo shows, at a minimum that he is aware of the items depicted in it. Here, whether defendant had posted an actual photo of himself with the black handgun with the distinctive silver ejection port, or had posted a composite or “photoshopped” image of himself holding such a handgun, the result would be the same: the posting would be relevant to show his familiarity with and affinity for such weapons. Indeed, had defendant simply commented on the webpage that he liked black handguns with silver ejection ports, that statement would undoubtedly have been relevant in this case, in which precisely such a weapon was used. No different 10 conclusion is warranted here: the photo, whatever its origin, was independently relevant because it showed that defendant was aware of, and based on the picture, had a connection to, the specific type of weapon used in this crime, regardless of whether it represented an actual event. The People were thus not required to show that the photo was genuine, only that defendant posted the image on his social media account. State v. Ford, 782 S.E.2d 98, 100-02 (N.C. Ct. App. 2016); Burgess v. State, 292 Ga. 1 CA-CR 10-0900, 2012 WL3580488 *305 (Ariz. Ct. App. August 21, 2012); Tienda, 358 S.W.3d at 634-36, 641-47; People v. Valdez, 201 Cal. App. 4 1429, 1432-37th (4 Dist. 2011).th Defendant also argues, as he did at trial, that the foundation was inadequate because of the possibility that someone else created the webpage and posted a fake picture of him which, coincidentally or otherwise, portrayed him holding the precise type of weapon used in the robbery here. But New York law does not require eliminating all possibility of tampering; it is generally sufficient, as noted above, that the connection between the item and the defendant is not “improbable,” even if another may be responsible. Mirenda, 23 N.Y.2d 453-54. Indeed, the possibility of forged or fraudulent evidence has existed throughout history, whether as to letters, documents, recordings, or other items of real evidence, yet that 11 possibility alone does not preclude the admission of evidence where a jury could fairly conclude that it was connected to the defendant. Here, there is no suggestion of anyone who might have intentionally posted such a photo. Mr. Louisma and his co-worker were, after all, complete strangers to defendant, nor has defendant pointed to anyone else with a motive to implicate him. Cf. Vayner, 769 F.3d at 132 (cooperating government witness and others “may have had reasons to create a profile page falsely attributed to the defendant”). Similarly, there is no allegation and little possibility that a friend of defendant’s might have, just by happenstance, manufactured a photo of defendant with the precise type of weapon used in this crime and decided to post it on defendant’s account. Cf. Sublet, 442 M.D. at 672-73 (authenticating witness denied authoring posts and there was testimony that others used her account and posted under her name). It was far more likely – and a reasonable juror could infer – that the owner of the website was defendant, whose name and photo were part of the identifying profile, and that the photo was present because defendant put it there. Because the mere possibility of tampering is insufficient to defeat a foundational showing and because it was “improbable,” under all the circumstances, that anyone else happened to create this profile and post this specific picture without defendant’s consent and knowledge, the foundational showing here was adequate. Moreover, 12 although the evidence adduced by the People provided a sufficient basis for the jury to infer that the website belonged to defendant, defendant was nevertheless able to argue to the jury that the possibility of tampering made the evidence unreliable. Thus, defendant’s complaints were heard, without precluding the admission of this relevant evidence entirely. In short, there was ample evidence for the trial court to make the preliminary, discretionary determination that the exhibit was what it purported to be. The detective testified that the exhibit reflected what was on the website and circumstantially connected defendant to the website by the username, profile picture of the account holder, and additional photos. Certainly, there was not “a total absence of evidence” to support the trial court decision, and thus “this court is without power to reverse his ruling” on the authentication issue. People v. Dunbar Contracting Co., 215 N.Y. at 422-23 (Cardozo, J.). Defendant also argues that the prejudicial effect of the photo outweighed its probative value and that it should have been excluded for that reason. But during the colloquy about the exhibit at trial, defendant specifically told the court that prejudice versus probative value was “not the issue,” electing instead to attack the authenticity requirements for the exhibit. He thus waived his current contention (Def. Br. at 51-53) that the court should have struck the balance differently and excluded 13 the evidence on this ground. In any event, the photo was probative of defendant’s identity, as it demonstrated his familiarity with the specific type of weapon used in this case. Indeed, the victim testified that the gun defendant is depicted as holding in the picture was the same size as the one used in the robbery, had the same type of barrel, had the same unusual two-tone coloring, and specifically that the silver portion of the gun was in the same place, on the top of the weapon (A: 117-18; 131, 148-49). 3 Additionally, given that defendant posted a picture of himself personally holding that type of weapon, the jury could reasonably infer that he liked or had a special affinity for it. Moreover, had defendant requested one, the court undoubtedly would have instructed the jury with regard to the potential prejudice arising from the photo. Finally, any error in the admission of the photo was harmless. Initially, any possible error here was one of state evidentiary law and not constitutional in nature, and thus the admission of the exhibit would be harmless unless there is a significant probability, rather than rational possibility, of a different verdict. People v. Crimmins, 36 N.Y.2d 230, 232 (1975). Here, the victim’s identification of defendant was strong, based on an ample opportunity to see defendant’s face in broad daylight, at 10:15 a.m., from a few feet away on a clear, sunny day without any Defendant’s current argument that the weapon was a “1911” in common use in the United3 States (Def. Br. at 39, 56) was never made to the trial court and thus cannot be raised here (A: 66-67, 69-81, 118, 182-94). 14 obstructions. The victim noticed defendant even before the robbery and was “on guard” from the first moments he saw him. In addition, the victim’s actions – feigning that he did not understand he was being robbed and then throwing the considerable amount of money he was carrying to the ground – both prolonged the duration of the encounter and showed that he was not overcome by fear but remained cool-headed during the robbery. Thus, the social media evidence was not such that its exclusion would have altered the jury’s verdict. People v. Rice, 75 N.Y.2d 929 (1990)(error was harmless in one witness identification rape case when rape occurred in daylight and defendant spoke to victim who immediately identified defendant in line-up). THE TRIAL The People’s Case The Crime On March 24, 2008, Emmanuel Louisma was working with Michael Davis delivering milk in Queens for Bartlett Dairy (A: 20-22, 101-02). They started work between 1:00 and 2:00 a.m., delivering to bodegas and diners, and, later in the morning, to schools (A: 23-24, 102, 104). Mr. Louisma and Mr. Davis, who had worked together for a few months, divided their work responsibilities and had a routine to complete the deliveries (A: 103, 142). When they arrived at a customer, 15 Mr. Davis stayed in the back of the truck and placed the ordered milk on the floor of the truck. Mr. Louisma would then grab the milk and place it onto a hand truck. Mr. Louisma would roll the hand truck into the customer’s store unless there was too much milk – then both men brought the milk inside (A: 22-25, 103-04). The bodegas and diners usually paid in cash and the schools had credit accounts (A: 25). When cash was received from the customer, Mr. Louisma placed the large bills in his vest pocket and the singles in a waist bag that he kept under the driver’s seat in the truck (A: 105). If Mr. Davis received the money, he gave it to Mr. Louisma or put it in a particular location in the truck (A: 25). The safety box in the truck, which was designed to hold the money, was broken and could not be used (A: 25, 105). At approximately 10:15 a.m., on March 24, 2008 – a clear and sunny day – after approximately 50 deliveries, Mr. Louisma and Mr. Davis pulled up by the entrance to Public School 124 located at 150 Avenue and 129 Street in Queens. Asth th soon as they parked, Mr. Davis went into the back of the truck and placed crates of milk onto the truck floor. Mr. Louisma stood on the sidewalk and picked up the first few crates and put them on a hand truck when he noticed defendant and another man walk past (A: 26-33, 106-08, 118-20). Defendant wore black sweat pants, a camouflage black and gray hoodie, a skull cap, had braided hair sticking out from under the skull cap, and had a little mustache (A: 118-19). The second man stood a 16 few feet behind defendant, and he wore a black hoodie and black sweat pants, and compared to Mr. Louisma was taller, heavier, and had a lighter complexion (A: 120- 21). Because these men were wearing hoodies, this made Mr. Louisma “stay on guard” and have his defense up (A: 110, 114). As defendant was about four feet away, Mr. Louisma saw him pull down his hoodie and pull out a gun from his waist area (A: 108-10, 112, 116, 120). The gun looked like a nine millimeter automatic and it was black and silver, with the silver being on the top of the gun where the bullet comes out (A: 117). Defendant then walked to within arm’s reach of Mr. Louisma and, with the gun pointed down, stated, “Yo, you know what time it is, give it up,” which Mr. Louisma interpreted to mean that it was a robbery (A: 112-14). Mr. Louisma responded, “Yo, I don’t know what you talking about” and raised his hands (A: 110-17). Defendant then raised the gun and pointed it directly at Mr. Louisma’s chest (A: 110-12, 116). At around the same time, Mr. Davis noticed that Mr. Louisma had not grabbed some of the crates and, when he looked out the door, he saw a man pointing a gun directly at Mr. Louisma’s chest from a foot away (A: 33-35, 36, 38, 43). Mr. Louisma was facing the gunman and was looking at the gunman and the gun (A: 39, 116). Mr. Louisma had his hands raised in the air and repeated “all right, all right, all right,” and Mr. Davis heard one of the perpetrators say “give me the money” (A: 17 34). While Mr. Davis could not see the gunman’s face, he noticed that the gunman had brown skin, was a little taller than Mr. Louisma, and wore a hoodie that was more black and white than black and gray (A: 39, 53). In response to defendant’s demand, Mr. Louisma threw the money he had in his vest pocket, about two to three thousand dollars in cash, on the ground (A: 34-36, 39-40, 117, 123-24). Defendant’s accomplice grabbed the money off the ground and both perpetrators fled down 129 Street and jumped into a white Hondath Accord (A: 40, 124-26). After the perpetrators fled, Mr. Louisma called the police and Mr. Davis called their employer (A: 40, 127). Meanwhile, Raymond Nidhan was outside the school with his daughter when he observed, from approximately fifteen to twenty feet away, two men running on 150 Street turning onto 129 Street (A: 84-86, 91). When the men startedth th running they were standing by the rear tire of a milk truck that was parked by the school (A: 89, 91). One of these men wore a black long-sleeved hooded shirt and the other man wore a white long-sleeve hooded shirt with black print on it. Both men wore black pants and, based upon a side view of them, these men appeared to be of African descent (A: 88, 94, 96). The man with the white and black hoodie held money in his hand, which he placed in his pocket; then both men ran with their hands 18 in their pockets and had their hoods on (A: 89-90, 95-96). About three-quarters of the way down the block, Raymond lost sight of the two men (A: 93). The Investigation Detective Maureen Sheehan was assigned this case a few weeks after the robbery, and spoke to Mr. Louisma, Mr. Davis, and Mr. Nidhan. She also canvassed for potential witnesses or video surveillance, and conducted victimologies – running computer checks including criminal histories and obtaining the complainant’s phone records (A: 176-79, 196-98). As part of her investigation, Det. Sheehan also surveilled Bartlett Dairy truck routes on three occasions (A: 176-79, 196-98). Mr. Louisma was not the driver when she conducted the surveillance and she conducted this surveillance because another driver on this same route was robbed after Mr. Louisma was robbed (A: 227-28). When he spoke to Det. Sheehan, Mr. Louisma gave her a description of the defendant, as he testified to earlier, and repeated that description to her when necessary (A: 153-55). He told Detective Sheehan that the gunman was a light- skinned black man who appeared to be about 21 to 25 years old, and wore a black and white hoodie with a do-rag or cap on his head (A: 203-06). As for the gunman’s height, Mr. Louisma gestured with his hands and Detective Sheehan estimated the gunman’s height (A: 204). He also told her that the gunman had lowered his hood, 19 although Sheehan did not remember that (A: 112-13, 121, 135-37, 206-07). Although Detective Sheehan did not note this on a police report, Mr. Louisma told her, as he testified, that the gunman had some facial hair (A: 206). On June 9, 2008, about two and one-half months after the robbery, Mr. Louisma viewed a line-up during which he instantaneously recognized defendant as the gunman that robbed him on March 24, 2008 (A: 129-30, 180-82). The People’s Application For Admission of The Internet Posting Prior to Mr. Louisma’s testimony, the prosecutor requested permission to introduce a posting that she found on the internet of an image depicting defendant holding a gun. She explained that, that morning, while covering defendant’s face in the photo, she had displayed the handgun portion of the photo to Mr. Louisma, and he had stated that the gun looked exactly like the gun used in the robbery (A: 66-67, 70). She intended to have the victim identify the gun from the photograph and then introduce the entire photograph through Detective Sheehan (A: 70). The prosecutor explained that the photograph was relevant, as it helped establish defendant’s identity as the shooter (A: 70-71). In support of her application, the prosecutor cited to People v. Webb, 60 A.D.3d 1291 (4 Dept. 2009), which, she explained, had a similarth fact pattern. 20 Counsel urged the court to deny the People’s application, arguing that the prosecutor’s reliance on Webb was misplaced. According to counsel, the probative value of the photograph, as compared to its prejudicial effect was “not the issue.” He argued, instead, that the prosecutor would be unable to lay a proper foundation for its admission (A: 71-72). Counsel asserted that the prosecutor was required to establish that the photograph was a fair and accurate representation of the defendant, or when and where the photograph was taken, who took it, and that it was not doctored. He argued that since she could not answer those questions, she would be unable to lay a proper foundation for the photograph’s authenticity. In support of his objection, counsel cited to People v. Byrnes, 33 N.Y.2d 343 (1974), which discusses the authentication of a photograph. 4 After the court indicated that it would rule on the foundation after it heard the evidence presented, defense counsel requested that the Court have the witness testify outside the jury’s presence first. He explained that simply learning about a website was prejudicial because the jury could check the website. He also asserted that the detective would not be able to authenticate the photo, because she had no basis to testify whether defendant was the person depicted, whether the photo was doctored, or how the photo was placed on the website. He asserted that he The transcript incorrectly denotes the volume for the Byrnes case as 30 and the citation or4 name for the second case defendant relied upon was incorrect (A: 72). 21 looked at the website and there was no reference to defendant’s name, there was a private password for the website, and there was no indication of how the photo was discovered (A: 73-74). Counsel then moved for a mistrial because, he asserted, the prosecutor made herself a witness in the case. He explained that, to the extent the prosecutor found the picture through her own investigation as she had stated at sidebar, she became a witness who he should be allowed to cross-examine. He asserted that he had every right to explore how the prosecutor found the website, what the victim may have told her about the website, and how she obtained the password (A: 74-75). He also complained that he specifically requested discovery of any photographs and requested that he be given time to research this issue. He summarized the issue as: whether or not this picture is admissible or not, whether the picture is authentic or not, how the picture got on that website, how the district attorney came into possession of that website, etc. These are all matters that are outside the presence of whether or not this defendant robbed somebody on one specific date . . . in Queens (A: 75). In response to the court’s question, the prosecutor explained that she obtained this photograph after her own investigation, which she conducted without any assistance from anyone else. She stated that the photograph is a public photo and it was readily visible on the website “www.blackplanet.com,” there was no password 22 needed to access the site, and it was found on a personal profile page that was similar to those found on My Space and Facebook (A: 76). When asked to describe how she found this particular page, the prosecutor explained that she went on that site and put in a user name of “Price One of a Kind,” which led her to defendant’s profile page, and that whoever created the profile page created that user name (A: 77). She further explained that she used that user name because she found his My Space page, which led her to some cue words which she searched on Google and the results there led her to this “blackplanet” profile page (A: 77-78). She showed the exhibit to the court and pointed out that it said on it that it was a public photo (A: 78). The prosecutor stated that the detective would testify that she was familiar with the photograph and could identify what was depicted in it. The court ruled that the People were allowed to have the victim identify the bottom of the photo and the item depicted being held and that the full photo could be shown to the detective. The Court also noted that the People had to lay the proper foundation and it would consider this foundation as it was elicited (A: 79). The court denied defendant’s application to have the witnesses testify outside the jury’s presence and his application for a mistrial. Defendant then requested that the detective be precluded from testifying about the specific website, and that application was also denied (A: 79-81). 23 The Foundation for the Social Media Exhibit Mr. Louisma was shown the lower half of the photograph, which was marked for identification purposes as People’s Exhibit 2B, and recognized the gun as being “similar to the gun that took place in the robbery” (A: 118). When asked how the gun was similar, Mr. Louisma explained that “it looks like the gun,” it had the “the silver piece on top,” the barrel of the gun was the same color as defendant’s gun, and it was the same size as defendant’s gun (A: 131, 148-49).5 Det. Sheehan identified defendant from the top half of the photograph, People’s Exhibit 2A. Det. Sheehan looked at the entire photograph, which was marked People’s Exhibit 3, and identified it as a photograph she had printed off the internet the previous day (A: 183). She explained that she navigated on her computer to “blackplanet.com,” entered “Price,” got a long list of public profiles with single photos next to each one. She scrolled through several pages of the list until she found a profile photo of defendant (A: 184-87). When she clicked on that profile photo, a social media page came up which had approximately 24 photographs of defendant, some written words on the page, and a listing of the owner’s age and hometown (A: 187-88). The exhibit was one of the images found on this public profile and it was posted on this user profile in November, 2007, about four months before the robbery. This exhibit depicts a black semi-automatic handgun with a chrome ejection port.5 24 The user name on this account was “Price_oneofkind” but the account did not have defendant’s first name listed (A: 189). Det. Sheehan recognized the image because the person depicted in it looked like defendant, whom she had had contact with on prior occasions (A: 189). The exhibit was a true and accurate depiction of the image that she saw and printed off the website a day earlier (A: 190). During defendant’s voir dire concerning the exhibit, Det. Sheehan acknowledged that she did not know who took the photograph, when or where it was taken, or if it was altered. She also explained that the prosecutor asked her to look at the website (A: 191-92).6 Counsel objected to People’s Exhibit 3 because, he asserted, no foundation was laid. The court admitted it into evidence over counsel’s objection (A: 192). Det. Sheehan looked at People’s Exhibit 2A and recognized it as the top of the same photograph of defendant as contained in People’s Exhibit 3. She also recognized People’s Exhibit 2B as the lower half of People’s Exhibit 3, depicting defendant from the waist down with a gun, his hands, and money (A: 193-94). When When she was cross-examined, Det. Sheehan again acknowledged that she did not know6 who took the photograph, where it was taken, under what circumstances it was taken, or if it had been altered in any way (A: 225). She also explained that she did not know the person or company that runs the website or how the photo was placed on the website. She was also unaware how the prosecutor learned of the website, if the victim had given the prosecutor any information about the website, or if the victim had placed that photo on the website (A: 226). 25 combined, People’s 2A and 2B were simply a larger photo of People’s Exhibit 3. People’s 2A and 2B were admitted into evidence and counsel did not reiterate any objection but the court noted that the admission of these photographs was over counsel’s objection. The Defense Case Reverend Ronald Price, defendant’s father, recalled that he was home on March 24, 2008, because he does not go to the office on Mondays and it was a Monday. He woke at 6 a.m. and performed “his devotion” for a few hours, during which the house was very quiet. When he came downstairs, he saw his father in the living room watching television and he assumed that his sons, defendant and Ronald Price, had gone out and were not home (A: 238-39, 241-42). He was mostly on the main floor of the home from 9:00 a.m. until 1:15 p.m., but he did go upstairs a few times for the laundry. He did not see defendant around 10:00 a.m. or 11:00 a.m. that morning (A: 243). He specifically remembered that day because he had gotten into an argument with defendant at about 1:15 p.m. when he found defendant sleeping in the basement. He got angry with defendant because defendant was supposed to go to the social security office to get a copy of his social security card so he could enlist in the Navy but he did not. He found defendant laying in bed wearing a white long-sleeved 26 t-shirt with a hood around his neck (A: 256). After their argument, defendant showered and, approximately forty-five minutes later, went out with his brother Ronald (A: 237-40, 243, 246). Because defendant would have had to pass him on the main level to leave the house and he never saw defendant leave, Reverend Price believed defendant was home all day until he found him (A: 243, 246). While he was aware of his son’s arrest in June, 2008, he did not learn the details of the crime until June or July, 2009, when defendant’s mother gave him the name of defendant’s prior attorney (A: 249-51). He never went to the police or the prosecutor to tell them that defendant was home that morning (A: 252). In 2008, defendant’s mother lived at 132 Street in Queens and defendant lived there at somend point (A: 254-55). The Summations During his summation, counsel argued, among other things, that the photograph was suspect because the case detective did not uncover it during her thorough investigation and was only told about it after the prosecutor mysteriously got a hold of it during the trial one and a half years after the crime. He further argued that the photograph should not be given any weight because the detective had no idea who made the photo, when it was made, how it was made, who posted it, the circumstances of its posting, or if it was altered. He posited that it defied logic that 27 this photo would materialize and that the victim, who had not seen the gun in a year and a half, would identify the gun as looking like the gun used in the robbery (A: 288- 90). In arguing that the evidence supported defendant’s guilt, the prosecutor argued, among many other things, that the gun defendant held in the photo looked exactly like the gun defendant used in the robbery (A: 296). In arguing that the victim’s recollection and identifications (of defendant and the gun) were credible, the prosecutor discussed his detailed description of the gun – black with silver where the shell ejects – and how it matched the gun defendant held in the photo (A: 305-06). In addressing counsel’s arguments that the photo of defendant holding the gun should be disregarded, the prosecutor argued that this photograph was found on defendant’s personal profile page on a public website. She posited that it was reasonable to infer that this was defendant’s profile as no one else would put defendant’s personal information and photographs online (A: 309-10). The prosecutor continued that it was up to the jury to decided if the photograph was accurate and if it depicted defendant holding a gun, but that the detective had recognized defendant from her previous dealings with him and the victim recognized the gun (A: 310). The prosecutor also argued that the gun defendant held in the photo looked “exactly like 28 the one that [the victim] described as having been used against him during the robbery” (A: 310). The Jury Notes During deliberations, the jury sent out a series of notes requesting all of the exhibits and some of the testimony, including testimony regarding defendant’s initial approach of Louisma, Louisma’s description of defendant to the police, the defense witness’s description of defendant and the hooded sweatshirt he was wearing that day, and Loiusma’s and Det. Sheehan’s testimony about the gun. 29 ARGUMENT T H E P E O P L E E S T A B L I S H E D T H E AUTHENTICITY OF THE SOCIAL MEDIA EVIDENCE, DEFENDANT WAIVED HIS CLAIM THAT ITS PREJUDICIAL EFFECT OUTWEIGHED ITS PROBATIVE VALUE, AND ANY ERROR WAS HARMLESS. This appeal brings up for review an issue of first impression dealing with the authentication and foundational requirements for the admission of social media evidence. While this Court has not yet had the opportunity to consider this issue, at7 least twenty-seven state jurisdictions and several federal Circuit Court of Appeals, including the Second Circuit, have done so and their cases provide reasoned and thorough guidance for this Court. The overwhelming national consensus is that8 authenticity of social media evidence is established through a two-pronged showing: 1) that the exhibit being admitted is an accurate copy of the social media posting, and Social media has been defined as “‘forms of electronic communications . . . through which7 users create online communities to share information, ideas, personal messages, and other content (as videos).’ Through these sites, users can create a personal profile, which usually includes the user’s name, location, and often a picture of the user. On many sites such as Facebook or Twitter, a user will post content—which can include text, pictures, or videos-to that user’s profile page delivering it to the author’s subscribers.” Parker, 85 A.3d at 685; see also Sublet v. State, 442 Md. at 638 (social media evidence derived from networking websites, which are “characterized by a format that allows users to create online profiles through which they share information, photographs and videos with other users”). In matters of the authentication of new forms of evidence, this Court has previously looked8 to other jurisdictions and commentators. People v. Patterson, 93 N.Y.2d 80, 84-85 (1999) (relying on “standards developed and utilized in other States” and “acceptable trends collected and analyzed in authoritative secondary sources”). 30 2) that the social media account or profile belongs to the defendant. This showing9 may be made by either direct or circumstantial evidence. And, once a judge determines that the inferences from the evidentiary foundation are strong enough for a reasonable juror to conclude that both elements exist, contrary arguments on these issues have been deemed to go to weight, rather than admissibility, and are properly made to the jury. Here, the People’s foundational showing established both elements of this standard. To establish the identity of defendant as one of the robbers, the People sought to admit a social media posting of him holding a firearm that had the same distinctive appearance as that used in the robbery – a two-tone semi-automatic firearm with a black body and silver ejection port, resembling a nine millimeter handgun. In laying the foundation, Det. Sheehan testified first that the exhibit was an accurate printout from the social media account “Price_oneofkind” on the website “blackplanet.com.” Second, Det. Sheehan connected the social media account to defendant circumstantially. She established that the username included defendant’s last name, that this account name was listed on the website together with a single In this case and cases cited herein – the relevance of the exhibits comes from the posting9 being attributable to the defendant but that will not always be the case. For example, a defendant may wish to use a posting from a victim’s website. Here, we describe the rule we propose as applying to defendant for conciseness, but it applies equally when the relevant posting is attributable to another party whom the proponent claims is the social media user. 31 profile picture identifying the user of the account and that that picture was of defendant, and that the account or webpage itself contained 24 additional pictures, all of defendant. This provided a rational bases for a reasonable juror to infer that the “blackplanet.com” account, identified by a profile picture of the defendant and 24 additional photos of defendant, in fact belonged to defendant. Moreover, defendant’s current arguments to the contrary are largely unpreserved for this Court’s review. Defendant did not argue to the trial court, as he does now (Def. Brief at 29, 37, 44-45), that the People were required to establish the foundational requirement by “clear and convincing evidence,” and indeed never even mentioned that standard below. He did not argue, as he does now (Def. Brief at 29, 37, 44-45), that circumstantial evidence is or should be insufficient to establish a foundation for social media evidence. And, while he now argues that the picture of him holding a gun was highly prejudicial and outweighed its probative value, he specifically told the trial court that this balancing was “not the issue” he was raising (A: 71). He thus not only failed to preserve, but affirmatively waived, that issue. The argument defendant did preserve, that the possibility of tampering precluded admission of the evidence, is unavailing. As this Court has held, the possibility of tampering, falsification, or forgery is not sufficient to defeat admission by itself so long as, under all the circumstances in the particular case, it is 32 “improbable” that the exhibit is attributable to someone other than the defendant. People v. Mirenda, 23 N.Y.2d at 453 (if the connection between sunglasses and defendant is not so tenuous as to be improbable, it is admissible as is other relevant evidence); see also People v. Lynes, 49 N.Y.2d at 292 (phone conversation admissible where possible, but “improbable,” that voice was not defendant’s). Here, unlike other cases in which a likelihood of tampering has been found to preclude admission, there is no other person who reasonably had a motivation to create a false account, much less a motive to post a false picture of defendant holding a weapon that happened to look just like the weapon used in this robbery. Moreover, unlike a dispute where the parties are known to each other, here the testimony revealed that defendant and the identifying witness had absolutely no prior acquaintance, and defendant has never contended otherwise. Thus, here, the mere unsupported possibility of tampering went to the weight to be accorded the evidence by the jury, an issue defendant argued at length during summation, but the jury ultimately rejected. Nor were the People required to elicit testimony from a witness who actually saw defendant possess the weapon and could state that the photo was a fair and accurate depiction of an actual event. To the contrary, the posting – like most social media postings – was relevant for the fact that defendant posted it, and thereby adopted it. Indeed, defendant’s posting of the photo of himself with the same specific 33 type of weapon as used in this robbery, four months before the robbery, at a minimum showed his familiarity with this unusual type of weapon and, based on his choice to post a photo of himself handling the weapon revealed, his affinity for it. This alone made the photo relevant. Finally, to the extent this error rose to the level of an abuse of discretion, any error was harmless. The witness here provided a remarkably strong identification, given his ability to view defendant in broad daylight, without obstruction on a clear, sunny day, his testimony that he was on guard the moment defendant appeared on the scene prior to the robbery, and his cool-headed actions during the robbery, feigning not to understand that he was being robbed and throwing the money to the ground. Under the circumstances, there is thus no “significant probability” – as required for a non-constitutional, evidentiary error – that defendant would not have been convicted had the evidence been excluded. A. The People Established the Authenticity of the Social Media Evidence Under the Prevailing Standard Followed by an Overwhelming Majority of Jurisdictions. In this case of first impression, this Court should adopt the standard for the admission of social media evidence as espoused by the overwhelming majority of jurisdictions nationwide. Under this standard, the proponent must make a two- pronged showing: 1) that the exhibit offered to the jury is an accurate depiction of the 34 social media posting, and 2) that the posting is attributable to the individual the proponent alleges – a showing which may be made by either direct or circumstantial evidence. This is a fair and logical rule requiring a showing from which a judge could conclude, and a jury could infer, that the exhibit is what it purports to be and is relevant to the proceedings. It is also consistent with this Court’s case law, under which circumstantial evidence may be used to authenticate exhibits, and inchoate and “improbable” possibilities of tampering do not preclude admission but go to the weight of the evidence. And it allows for the admission of a body of significant evidence for all parties in a litigation without burdening the proponent with unduly onerous or unrealistic authentication requirements. Here, the People satisfied this showing, specifically adducing testimony as to both elements. Det. Sheehan testified both to the fact that the exhibit was an accurate reproduction from the internet and to defendant’s connection to the website, including the username, the identifying profile picture of defendant as the account holder, and all the additional pictures of defendant on the account. Under the circumstances it was more likely than not – indeed, far more likely than not – that the account was the defendant’s, and defendant’s arguments about the mere generalized possibility that someone else could have created the account, thus, went to the weight 35 to be accorded the evidence, an issue which he was allowed to, and did, present at length to the jury. i. While this Court has not yet considered the issue, the consensus among jurisdictions nationally requires the proponent of social media evidence to demonstrate that the exhibit accurately reflects the social media account and to attribute the account to the defendant. This standard is fully consistent with New York law. Nearly all authorities have adopted the same standard to demonstrate the authenticity of social media evidence, as noted by distinguished commentators synthesizing the caselaw. Schoen, p. 2-5; Edward J. Imwinkelried, Evidentiary Foundations, § 4.02(6) (9 Ed. 2015) (“Imwinkelried”). Under this standard, theth proponent of social media evidence must first demonstrate that the exhibit presented to the jury is an accurate reproduction from the social media account, and, second, by either direct of circumstantial evidence, that this posting is attributable to the person the proponent claims. Vayner, 769 F.3d 125; Schoen, at 2; Imwinkelried, § 4.02(6). It has been nearly universally accepted that to establish the first foundational requirement – that the exhibit accurately reflects a social media posting – the proponent must demonstrate that the exhibit is a genuine printout from the social media site that the party alleges is relevant to the case. Imwinkelried, § 4.02(6); Schoen, at 2; see also Randolph N. Jonakait, et al., New York Evidentiary 36 Foundations, § M, pp. 133-41 (2d Ed. Supp. 2008). As one court has described this10 element, the printout of web pages must be authenticated by showing that they were accurate reflections of “‘the content of the page and the image of the page on the computer at which the print out was made.’” Smoot v. State, 316 Ga.App 102, 109 (2012), quoting McCormick on Evidence § 227 (6 Ed. 2006). Through thisth showing, the traditional authentication requirements that a proponent must prove the identity of the exhibit and its unchanged condition are established by identifying the social media evidence as a posting and demonstrating that it is in the same condition as it was when viewed on the website. Imwinkelried, § 4.02(6). See also People v. Julian, 41 N.Y.2d 340, 343 (1977). This foundation is not difficult to establish, as it can be laid by having a witness testify that he or she is the person who printed out the posting, that he or she Numerous jurisdictions have adopted this element. People v. McMahen, Docket No.10 324423, 2016 Mich. App. Lexis 637 at *17; 2016 WL 1230847 (Mich. Ct. App. March 29, 2016) (testimony that printout of screenshots of Facebook were same as on Facebook page reviewed by detective); State v. Ford, 782 S.E.2d 98 (N.C. Ct. of App. 2016) (state laid sufficient foundation to prove that exhibit reflected defendant’s Myspace webpage); State v. Paster, 15 N.E.3d 1252, 1258- 59 (Ohio Ct. Of Appeals 2014)(testimony from individual that generated them proved exhibits were printouts from Facebook and Craigslist); State v. Jones, 318 P.3d 1020(Kan. Ct. App. 2014)(printout of webpages authenticated as accurately reflecting the content of the page and the image on the page on the computer when it was printed out); Commonwealth v. Lee-Purvis, 2014 PA Super. Unpub. LEXIS 4249, 2014 WL 10986255(Pa. Super. Ct. February 7, 2014)(proof that what exhibit appeared to be was defendant’s Facebook account); Smoot v. State, 316 Ga.App. 102 (2012) (exhibit accurately reflected content of the page and image on the page which was on computer when printed out); see also United States v. Bansal, 663 F.3d 634 (3d Cir. 2011) (screenshots of website were what they purported to be: printed screenshots from webpage); State v. Bell, CA 2008-05-044, 2009 WL 1395857 (Ohio Ct. App. May 18, 2009). See also Kenneth S. Broun, ET. AL, McCormack on Evidence § 227, p. 105 (7 Ed. 2013)(“McCormack”). th 37 recalls the appearance of the exhibit when she printed out the posting, that he or she recalls the appearance of the printout that he or she made from the social media site, and that he or she recognizes the exhibit as that printout. Imwinkelried, § 4.02(6); see also People v. McMahen, Docket No. 324423, 2016 Mich. App. Lexis 637; 2016 WL 1230847 (Mich Ct. App. March 29, 2016). If the person who printed the exhibit from the website is not available, then the proponent can have a witness testify to visiting the website, remembering what was depicted on the website, and confirming that what was depicted in the exhibit was an accurate reflection of what was on the website. Schoen, at 2. The aspect of authenticity of social media posting which is subject to more discussion and litigation is the second element of authenticity – that the proponent must establish that the social media posting is attributable to the person alleged to have made it. State v. Jones, 318 P.3d 1020 (Kan. Ct. App. 2014). This element is necessary for the authentication of social media evidence because it is required to demonstrate the exhibit’s relevance and materiality to the case. Smoot v. State, 316 Ga.App at 109; see also Moore v. State, 295 Ga. at 714-15. As one commentator explains, for this authenticity factor, trial courts take a totality-of-the- circumstances approach and “will rely upon a combination of circumstances” to determine if this aspect of the foundational requirement has been met. Schoen, at 2. 38 One way to establish that the posting is attributable to defendant would be to forensically examine his computer and ascertain that it was used to create the posting and that the posting was uploaded onto the website from that computer; this is an onerous task not often attempted. More often, proponents rely upon a combination of other facts and circumstances to demonstrate a defendant’s control or connection to a website. See State v. Koch, 157 Idaho 89 (2014)(states have not required direct evidence of authorship but had allowed proponent to establish by circumstantial evidence). For instance, the proponent can demonstrate that the defendant adopted the user name shown on the profile page in question, that the posting was available to a wide audience, that the identifying photograph on the profile page was that of this person, or that there was personal information on the profile page that matched this person. Imwinkelried, at 56. There are no bright-line rules or specific factors for the type or quantity of evidence required to sufficiently demonstrate the authentication of a social media exhibit. What is clear is that, as almost all jurisdictions have acknowledged and as is long-established under traditional evidentiary principles, authentication evidence for social media exhibits may be in the form of direct or circumstantial evidence. Vainer, 769 F.3d at 130; Parker v. State, 85 A.3d 682 (Del. 2014) (“social media post was sufficiently authenticated by circumstantial evidence and by testimony 39 explaining how the post was obtained”); State v. Koch, 157 Idaho 89 (Idaho 2014)(authentication of social media evidence can be established by “circumstantial evidence establishing that the evidence was what the proponent claimed it to be”); Rodriguez v. State, 273 P.3d 845 (Nev. 2012) (authorship of text message can be proven by direct or circumstantial evidence); O’Neil v. State, No. 1913, Sept. Term 2014, 2015 WL 6447254 (Md. Ct. Spec. App. 2015) (authentication of authorship of Facebook messages established by circumstantial evidence); Hollis v. State, 223 Md.App. 773 (Md. Ct. Spec. App. 2015)(circumstantial evidence used to establish that data on thumb drive was retrieved from cell phone); Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015) (ownership of twitter account containing photos of defendant holding guns that matched description of gun used in crimes established circumstantial evidence); State v. Assi, 1 CA-CR 10-0900, 2012 WL 3580488 (Ariz. Ct. App. August 21, 2012) (circumstantial evidence used to establish defendant’s ownership of Myspace account from which several photos of defendant posing with guns were found and entered into evidence); Valdez, 201 Cal. App. 4 at 1434-36; Inth re F.P., 878 A.2d 91 (Pa Super. Ct. 2005) (court declines to adopt a standard that requires more direct proof of authorship); see also Commonwealth v. Purdy, 459 Mass. 442 (Mass. 2011) (authorship of emails established by circumstantial 40 evidence); Tienda, 358 S.W.3d at 639n.28 (collecting cases with different types of authentication evidence). The kind and type of authentication evidence the proponents need to establish their burden is dependent upon the nature of the evidence, the purpose for which it is being offered, and the circumstances of the case. In an often-cited and widely relied upon Texas case, the court explained that “as with the authentication of any kind of proffered evidence, the best or most appropriate method for authenticating electronic evidence will often depend upon the nature of the evidence and the circumstances of the particular case.” Tienda, 358 S.W.3d at 639. Two cases illustrate the types of showings held sufficient under the test outlined above. In Burgess v. State, 292 Ga. at 821, the Georgia Supreme Court upheld the admission of screenshots from a Myspace social media page based on the two-pronged showing described above. The screen shot depicted the Myspace profile for a man called “Oops,” a nickname used by the defendant. At trial, the investigating detective testified that he accessed the public Myspace profile for “Oops” on Myspace, printed out that page, and that the exhibit handed to the jury was a fair depiction of what he saw on the screen. The detective testified that he confirmed some information on the website, including defendant’s nickname, that he was from New York, and that photos on the website were of defendant. The defendant 41 challenged this evidence on appeal, claiming that the evidence of authentication was insufficient because the detective could not say who owned or created the profile page and the prosecution failed to subpoena the website provider. Rejecting the defendant’s contentions, this evidence, the state’s highest court held, was sufficient circumstantial proof to authenticate the printout. See also In re L.P., 324 Ga. App. 78 (Ga. Ct. of App. 2013). In State v. Ford, 782 S.E.2d 98 (N.C. Ct. App. 2016), a North Carolina court similarly upheld the admission of screenshots from a Myspace webpage that the State argued belonged to the defendant. In Ford, the defendant was convicted of involuntary manslaughter and obstruction of justice resulting from his dog, DMX, killing a man at his neighbor’s house; there were no witnesses to this killing. At the trial, the State admitted screenshots from a Myspace account belonging to “Flexugod/7.” On the webpage, a detective saw photos of defendant and videos of defendant’s dog. Screenshots of a video link entitled “DMX the Killer Pit” and captioned “After a Short Fight, he killed that mut” and “Undefeated” were admitted into evidence, along with a rap song posted on the page purportedly relating to the case. A witness testified that defendant’s nickname was “Flex.” The intermediate appellate court rejected defendant’s argument that the photos and videos of him and his dog on the site associated with his nickname were insufficient authentication. The 42 court held that this evidence provided strong circumstantial evidence that the webpage belonged to defendant. It relied upon the uniqueness of the content because it contained defendant’s nickname, his pictures, his dog’s pictures, and videos along with the rap song. These cases demonstrate, as Professor Imwinkelried has observed, in this area, “there are no hard-and-fast rules governing the sufficiency of the foundation. . . . [T]he dispositive question is whether, as a matter of logic, the combination of circumstances supports a permissive inference that the person made or authorized the posting.” Imwinkelried, § 4.02(6). Indeed, the proponent is not required to conclusively establish that the item is what it purports to be, they must demonstrate “sufficient evidence to allow a rational trier of fact to conclude that the proposed evidence is what the proponent claims it to be.” Schoen, at 2; see United States v. Barnes, 803 F.3d 209 (5 Cir. 2015); Vayner, 769 F.3d at 130 (“proponent need notth rule out all possibilities inconsistent with authenticity” or “prove beyond any doubt that the evidence is what it purports to be”); United States v. Chin, 371 F.3d 31, 37 (2d Cir. 2004) (same); Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015); State v. Palermo, 129 A.3d 1020 (N.H. 2015). Nor does the possibility of tampering or manipulating evidence, by itself, preclude authentication of social media evidence. Indeed, the mere possibility of 43 tampering goes to the weight of the evidence, and the opponent of the evidence may present rebuttal evidence that “raises a genuine issue about the reliability of the evidence as an accurate depiction of what actually appeared on the website.” Schoen, at 2. This, of course, is an extension of the general rule of evidence that the opponent “remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning . . . .” Chin, 371 F.3d at 38; see also Hollis v. State, 223 Md. App. 773 (Md. Ct. Of Spec. App. 2015)(once proponent has satisfied slight burden of authentication, opponent may challenge the evidence to attack weight); People v. Downin, 357 Ill. App. 3d 193, 202-03 (Ill. App. Ct. 2005)(“a finding of authentication does not preclude the opponent from contesting the genuineness . . . .”). In Tienda v. State, 358 S.W.3d at 642-46, for example, the trial court admitted postings from a Myspace account that the State characterized as admissions to the shooting which led to the death of an individual. The appellate court held that the content of the Myspace postings was sufficient circumstantial evidence that the site was created and maintained by defendant. This evidence consisted of proof that the user went by a name comprised of defendant’s nickname and used an email address containing his name, that a photograph of defendant was next to a list of his pedigree information, and that numerous photographs of defendant with his unique 44 arm, body, and neck tattoos, distinctive eyeglasses and earring were posted on the webpage. The page also had many posts referring to the killing, posted a recording of a song played at the victim’s funeral, and the content of some messages related to this case. The court also noted that the possibility that defendant’s account had been tampered with as part of an “elaborate and ongoing conspiracy” was “an alternate scenario whose likelihood and weight the jury was entitled to assess once the state had produced a prima facie showing that it was appellant . . . who created and maintained these Myspace pages.” Tienda, 358 S.W.3d at 645-46. In short, in federal courts and an overwhelming majority of state jurisdictions, the proponent of social media evidence has to demonstrate by sufficient evidence that the exhibit is an accurate printout of a social media posting that is attributable to the defendant. This is a reasonable application of traditional evidentiary principles to this new technological form of evidence. This standard is also fully consistent with New York law. As in other jurisdictions, New York starts from the fundamental evidentiary principle that “all relevant evidence is admissible unless its admission violates some exclusionary rule.” People v. Scarola, 71 N.Y.2d 769, 777 (1988) citing People v. Alvino, 71 N.Y.2d 233, 242 (1987), Ando v. Woodberry, 8 N.Y.2d 165 (1960); see also R.T. Farrell, Prince, Richardson on Evidence, § 4-101 (11 Ed. 1995) (“Richardson”); Edith L. Fisch,th 45 Fisch on New York Evidence, § 4 (2d Ed. 1977) (“Fisch”). “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.” People v. Scarola, 71 N.Y.2d 769, 777 (1988); see also People v. Lewis, 69 N.Y.2d 321, 325 (1987); Farrell,§ 4-101. Relevance should be proven by a prima facie standard of proof – “whether a reasonable jury could find the fact to be proved from the evidence . . . .” Michael M. Martin, Daniel J. Capra, Faust F. Rossi, New York Evidence Handbook, § 1.5.1 (2d Ed. 2003). Before real evidence can be admitted, the proponent must establish its authenticity by showing that the evidence is what it purports to be. Fisch, § 132. This requirement is an aspect of the rule of relevance, because, without such a showing, the evidence is unconnected to the case. McCormack, § 185; Fisch, § 131- 32. In the specific context of real evidence in a criminal case that is purportedly connected to a defendant, this Court has long held that “the test for admissibility. . . is an evaluation of how close is the connection between the object and the defendant.” Mirenda, 23 N.Y.2d at 453. This Court has explained, “If [the connection] is not so tenuous as to be improbable, it is admissible as is any other evidence which is relevant to an issue in the prosecution.” Id. at 453. 46 Circumstantial evidence is admissible on this issue. See Fisch, § 132, p. 77 ; Julian, 41 N.Y.2d at 343; see also Robert A. Barker and Vincent C. Alexander, Evidence in New York State and Federal Court, § 9.9 (2d Ed. 2011)(discussing circumstantial evidence used to authentic documentary or tangible evidence). As this Court has observed specifically with regard to the question of authentication, “The process of drawing a concrete conclusion from differing inferences requires adding together a number of circumstances, each of which by itself might be common . . . but which, when viewed together, make it more than probable” that the item is what it purports to be. Mirenda, 23 N.Y.2d at 453. Moreover, this Court has held that the circumstantial proof supporting admission need not permit only one inference, as would be required for proof of guilt beyond a reasonable doubt. Id. at 453. See also Lynes, 49 N.Y.2d at 292 (“Even where the evidence admits of other possibilities, the trial court, in the first instance “must determine that the proffered proof permits the drawing of inferences which make it improbable” that the evidence is connected to someone else”). Where the “facts and inferences in various combinations or in concert” support the connection, the contrary possibility goes to the weight of the evidence to be accorded by the jury, “aided as it could be by the instruments of cross-examination, counsels’ arguments and other fact-finding tools available at the trial level – to decide whether, as Learned Hand put it, ‘The chance that these 47 circumstances should unite in the case of some one [other than the defendant being responsible is] so improbable’” that the evidence must be deemed sufficiently connected to the defendant. Lynes, 49 N.Y.2d at 293. Thus, evidence raising the possibility of a third party’s responsibility or connection goes to weight rather than admissibility. See also Dunbar Contracting Co., 215 N.Y. at 422-23 (authentication of voice in telephone call and of letter sufficient even on cross, authenticating witness admitted his voice identification was a guess and even though letter signed in handwriting of someone other than who it purported to be) (Cardozo, J.). Additional evidence may be necessary to show that the object is in an unchanged condition from a relevant point in time. People v. Hawkins, 11 N.Y.3d 484 (2008); People v. McGee, 49 N.Y.2d 48, 59 (1979). Only “reasonable assurances,” however, are required in this regard under New York law. Indeed, even for wholly fungible evidence, which generally requires a showing of a chain of custody, gaps in that chain go to the weight, rather than the admissibility of the evidence. Julian, 41 N.Y.2d at 344. The national standard for the authentication of social media evidence is fully consistent with this caselaw. The standard permits courts to admit this evidence based upon a showing that the exhibit accurately reflects what appears on the social media account, establishing its “unchanged condition” from the time of the posting, 48 and to use circumstantial evidence to draw inferences regarding the connection from the exhibit to the defendant. Where there are sufficient inferences available for a court to draw the inference concerning the connection, the possibility that someone else is responsible for the account or posting may be argued to the jury, which can accept or reject the evidence as they see fit. New York law is consonant with each of these principles, as it permits circumstantial authentication showings, does not require proof of preclusion of a third party’s connection to, or responsibility for, the evidence, and allows the opponent to present whatever arguments it wishes to the jury, who is entrusted with the ultimate determination of what weight to accord the exhibit. The national test, then, is a reasonable application of New York law to the unique context of social media evidence. The national rule, supported as it is by New York’s principles of authentication, is also a reasonable one. It allows a party, whether it be a civil litigant, a prosecutor, or a criminal defendant, to introduce relevant evidence based on circumstantial proof while allowing the jury to ultimately determine what weight the evidence should be afforded. Circumstantial proof, after all, is, in every jurisdiction, sufficient to support a verdict of guilt beyond a reasonable doubt as required by the constitution, and accordingly, there is no reason why it should not be sufficient to establish authentication under state evidentiary rules. Moreover, parties 49 are not, under this standard, required to go through the onerous steps to call upon representatives of the social media company to testify to the technological details of a posting, where there exists a common sense inference that the social media page belongs to the party the proponent claims. This balancing of interests has been adopted by the overwhelming majority of courts, and, consistent with New York law, should be adopted here. ii. The People established an adequate foundation when they demonstrated that the exhibit was an accurate depiction of a relevant posting on what a reasonable court or juror could infer was defendant’s social media account. In this case, the People satisfied the prevailing standard for authenticating social media evidence by demonstrating that the exhibit produced in court was an accurate copy of the posting the detective found on a social media page and that the profile belonged to defendant. As a result, the trial court’s admission of this evidence should not be disturbed on appeal because it does not rise to the level of an abuse of the trial court’s discretion. Dunbar Contracting, 215 N.Y. at 422-23 (whether the evidence has “been sufficiently authenticated [is] a question of fact to be disposed of preliminarily by the trial judge, and unless there was a total absence of evidence, this court is without power to reverse his ruling. We are not at liberty to review the exercise of discretion”); see also People v. Aska, 91 N.Y.2d 979 50 (1998)(the trial court granted broad discretion to preclude or admit evidence; “absent an abuse of discretion” trial court’s determination “should not be disturbed on appeal”); see also People v Halter, 19 N.Y.3d 1046, 1051 (2012); People v. Petty, 7 N.Y.3d 277, 286 (2006)(“trial court has discretion to admit or preclude” evidence); People v. Scarola, 71 N.Y.2d 769, 773, 777 (1988). Here, the People adequately established the authenticity of the exhibit by demonstrating that it consisted of printouts from a social media page associated with defendant. To begin with, the People more than adequately identified the11 exhibits here as the printouts the detective obtained from defendant’s “blackplanet.com” user page. The detective testified that she recognized the exhibits, that they were the printouts of a social media posting she printed out a day earlier, and that they were a true and accurate depiction of the posting (A: 184, 189-90, 192-95). This testimony was sufficient to satisfy the first prong of the test: identifying the exhibit as an accurate representation of what appeared on the social media page. See Imwinkelried, § 4.02(6), p. 55 (“there is certainly a sufficient authentication when the witness testified that: He or she personally printed out the posting, they recall the appearance of the printout, and they recognize the exhibit as the printout.”); see also Schoen, at 2; People v. McMahen, Docket No. 324423, 2016 WL 1230847 (Mich. Ct. The People introduced three exhibits – People’s 2A, 2B, and 3 – which were copies of the11 same social media posting or a portion of it. 51 App. March 29, 2016) (“With respect to the Facebook postings, at trial the prosecution confirmed with Officer McIntire that he reviewed defendant’s Facebook page. Officer McIntire then went through the Facebook postings confirming that they were screenshot photographs of a Facebook page assigned to John Doe of Satan’s Sidekicks Motorcycle Club, an alias that defendant routinely employed”). The People also set forth sufficient proof, in the form of circumstantial evidence, for a reasonable juror, and the trial court here, to conclude that defendant was responsible for this social media posting. A little background about social media accounts is relevant to the analysis. Social media accounts allow users to socialize via computer and other electronic devices with family, friends, acquaintances and anyone else of their choosing. A person can set their profile to give access to a limited number of people that they have connected with or “friended” (in the case of Facebook), or they can set the profile to “public” which allows any person to view it. McCormack, § 227, p. 107. The social media sites allow for the user to choose a screen or user name and choose a single profile photo or image to associate with the account. Often a person will set their profile image as a photo of him or herself, allowing viewers to quickly determine the owner of the social media page. “Blackplanet.com” is a social media site that allows users to create user names and set profile images to identify the user. See www.blackplanet.com. 52 Here, the detective testified that she navigated to “blackplanet.com” on a computer and searched for “Price,” which resulted in several screen pages containing eight usernames per page, along with an associated profile picture for each name. After the detective scrolled through six to seven pages, or up to fifty-six users, she found a username including the word Price with an image of defendant as the identifying profile photo. The detective recognized defendant from this profile photo as she had arrested him in this case, conducted a line-up with him, and had some other prior contact with him. The username associated with defendant’s profile photo was “price_oneofakind,” which was a combination of defendant’s surname and “oneofakind.” This evidence – the single identifying profile photo along with the user name – was, by itself, strong proof that this user profile belonged to defendant. But, there was more circumstantial evidence demonstrating that the account was defendant’s. The account contained another twenty-four images of defendant. The number of these photos and defendant’s presence in each one of12 them was further corroboration that the account belonged to defendant. See In re L.P., 324 Ga. at 79, 82 (Facebook user page under defendant’s street name, with day Also included on this user profile was the user’s age and hometown, neither of which made12 the detective question her identification of the user profile as belonging to defendant nor was there any evidence that this information was inconsistent with defendant’s pedigree, as counsel surely would have raised that during cross-examination. 53 and month of his birth, and photos of him sufficient to demonstrate posting made by him). From all this circumstantial evidence, a reasonable juror, and, moreover, the trial court here, could fairly infer that the account for the user “Price_oneofakind” belonged to defendant. The account owner identified himself not only by incorporating his surname, but by including a photo of himself. And the additional photos, all being of defendant, were additional evidence as to the holder of the account. In light of all of this evidence, it was highly unlikely that someone else randomly created the social media page, identifying him or herself by a picture of the defendant, and then included only other pictures of the defendant. It was, rather, far more likely that defendant himself had created it and used it like any ordinary social media user, to share images and information about himself with others. Nor does the mere possibility that someone could have undertaken to forge such an account sufficient to negate the strong, if not overwhelming, inference that the account belonged to defendant. There was no evidence that anyone had a reason to fabricate this profile. See People v. Valdez, 201 Cal.App.4th 1429 (Cal. Ct. App. 2011)(“nothing suggested [defendant] had a personal enemy with motive to implicate [him] in future gang crimes by creating an entire site or individual posting on it.”). This was not a case involving personal animus where defendant had an 54 adversary seeking retribution or revenge, or one in which defendant was involved in an acrimonious dispute with someone he knew, like a former romantic or business partner. Instead, here, the defendant and the witnesses who testified at trial were complete strangers with no known prior connection or relationship. Moreover, defendant was not a public figure, whose fans might have sought to create a false profile. In addition, nothing in the record suggests why a complete stranger would have not only created such an account, but would also have chosen to post, four months prior to the robbery, an image of him which, by happenstance, showed him posing with the precise type of weapon used in this robbery. For all these same reasons, defendant’s suggestion at trial that the victim might have created the profile is wholly unreasonable. Given that defendant and the victim had no prior acquaintance, that the victim would have been unlikely to have access to so many images of defendant, and that there was no evidence that the victim ever acted vindictively toward defendant, the trial judge reasonably rejected that argument. Of course, defendant was free to rebut the People’s evidence and attempt to demonstrate that this was not his social media page or that his profile had been tampered with and that he had not uploaded or created the posting. And, in fact, he made some of these precise arguments to the jury, claiming, without support of any 55 kind, that the victim or some other unknown person may have been responsible for the posting. The jury, like the trial court, found these arguments unpersuasive, however, and understandably rejected them. In short, under the totality of circumstances, the logical and reasonable inference was that the person who created the account with the “price _oneofakind” user name, including the single identifying profile photo of defendant and over twenty additional photos of defendant, was in fact defendant, who was simply using the account as would an ordinary social media user. It was, by contrast, highly unlikely that the account was created by an unknown, malicious third party who had an unexplained motive to create such an account, and even more unlikely that the unknown party would have randomly chosen to post a photo of defendant with the precise weapon utilized in this crime. As a result, the trial court had ample ground for concluding, as it did, that the exhibit was what it purported to be, a posting from defendant’s social media account on “blackplanet.com.” The circumstantial proof of authenticity in this case is similar to, and in some respects better than, that in Burgess, discussed above, where the court admitted a printout of screenshots from a Myspace webpage based on circumstantial information contained on the page, despite the possibility that someone else could have created it. There, the investigating detective accessed the relevant webpage for 56 “Oops,” a nickname defendant used, and used the content of the page, including photos of the defendant and other generic information on the page about the owner, such as defendant’s age, his city of origin, and his gang membership, to confirm that the page belonged to defendant. Georgia’s highest state court held that the screenshots were properly admitted, despite defendant’s objection that there was no direct evidence as to who owned or created the social media page. Here, Det. Sheehan similarly linked the social media page to defendant circumstantially, using, as had the detective in Burgess, photos of defendant contained on the webpage. In fact, here, the showing specifically included testimony that the single profile picture used to identify the owner of the social media account was a picture of defendant. And while the detective in Burgess mentioned other information on the page corresponding to defendant, all of that information was generic, such as his age, city of origin, and gang membership, which would have been known by many others and could have been placed there by someone other than the defendant. Thus, in both cases, the mere possibility that someone else could have created the page was insufficient to defeat the showing of authenticity, as the page itself adequately reflected who the owner was and it was improbable that someone else created it or posted the relevant entries. See also In re L.P., 324 Ga. App. at 80- 81 (authentication established where detective testified that he used defendant’s 57 nickname to look up social media page, that that page contained pictures of defendant and defendant’s generic biographical information, and that printout exhibit accurately reflected what was on webpage). Thus, the record demonstrates that the trial court did not abuse its broad discretion in admitting these exhibits as the People adequately demonstrated that they were accurate printouts from defendant’s social media page on “blackplanet.com.” As this Court has held with regard to the authentication threshold, “[u]nless there [is] a total absence of evidence [to support the trial court’s determination], this court is without power to reverse the trial court’s ruling.” People v. Dunbar Contracting Co., 215 N.Y. at 422-23. Because there was specific, identifiable evidence here to support the trial court’s authentication ruling, including the username on the account, the single identifying profile picture of defendant associated with that account, and more than 20 additional photos of defendant on the social media page, the trial court’s determination should be upheld. iii. Defendant’s arguments to the contrary are largely unpreserved and entirely unavailing. Defendant raises essentially four arguments in response to the People’s showing of authenticity here. First, defendant argues that the showing must be made by clear and convincing evidence, citing to Patterson, 93 N.Y.2d 80 (1999). (Def. 58 Br. at 29-30). Second, without providing any support at all, defendant claims that circumstantial evidence can only be used by the proponent of social media evidence if the proponent has limited investigative powers, and thus may not be used by the People (Def. Br. at 44). Third, defendant argues that the photograph posted on the website could not be admitted because no one testified that it was a fair and accurate depiction of an actual event. Fourth, defendant claims that the standard for social media evidence must be higher than in the ordinary case because of the potential for tampering, and that the People here failed to show that the image was not tampered with. Defendant’s first two arguments are completely unpreserved and all of his arguments are meritless. Not once during the initial lengthy colloquy with the trial court or during his objection to the admission of this evidence after a foundation was laid did defendant argue that the People were required to prove the foundation by clear and convincing evidence, or that circumstantial evidence on this issue was insufficient (much less propose a rule that applies differently for parties with investigative means). As such, these issues are beyond the Court’s power of review. C.P.L. §§ 470.05; 470.35. Moreover, this Court has held that circumstantial evidence is sufficient for authentication, even when offered by the People, and has rarely, and at best inconsistently referenced clear and convincing evidence. Because these 59 arguments would not have been readily apparent to the trial court, it was all the more important for defendant to alert the trial court to them, which he wholly failed to do. Nor were the People required to establish that the photograph was a fair and accurate depiction of an actual event. As with most social media evidence, its significance was in the posting of it on a website that belonged to defendant. He signaled both his familiarity with the specific type of weapon used in this case – a two-tone nine millimeter handgun with a silver ejection port of the same size and shape as the one used in the robbery – and demonstrated his affinity for the weapon13 by posting a picture not simply of the weapon, but of him brandishing it. Whether the photo was real, a composite, or wholly manufactured, the significance here was the same – he knew about and liked the specific type of weapon used in this case. For the same reasons, courts considering the authentication of photos and exhibits on social media accounts have not required showings that the photos are fair and accurate depictions of actual events, but have admitted the photos because they were posted on a website belonging to the defendant. See, e.g., Kincade v. State, No. 63563, 2014 Defendant’s additional, somewhat lengthy argument that this multi-colored nine millimeter13 handgun is a common type of handgun in the United States owned by many citizens (Def. Br. at 39- 40, 56) – a factual contention the support for which is largely culled from the internet which is, somewhat ironically, offered as authoritative on this issue – was never raised in the trial court and, thus, this contention is also unpreserved for appellate review. Hawkins, 11 N.Y.3d 484, 491-494 (2008). See, infra, pp. 61-62. 60 WL 6609504 (Nev. 2014); Ford, 782 S.E.2d at 98 (admitting photos and videos without evidence that they were fair and accurate depictions of events). And, for partially related reasons as well as the reasons cited above, the possibility of tampering does not preclude admission. Again, the possibility of tampering with the exhibit before it was posted is beside the point; the photo was adopted by defendant when posted on his website, regardless of it was whether real, “photoshopped,” or otherwise altered. And the People introduced testimony that the exhibit accurately reflected what was on the website, establishing that the exhibit fairly depicted what was on the “blackplanet.com” page. Moreover, under this Court’s cases discussed above, the mere possibility that someone else created the website and posted a picture of defendant with the exact same gun as used in this case is insufficient to defeat its admission, particularly where, as here, there was no relationship between the parties and no motivation to commit such an act. a. Defendant’s arguments that the People were required to prove authentication by a clear and convincing standard of proof and that they could not use circumstantial evidence to satisfy their burden are beyond this Court’s power of review. This Court cannot consider defendant’s contention that the proponent of social media evidence must establish its authenticity by clear and convincing evidence as this claim was not preserved for appellate review. For a question of law 61 to be presented for this Court’s review, a defendant must timely and specifically object to the purported error. See CP.L. §§ 470.05(2), 470.35; People v. Morris, ___N.Y.3d___, 2016 N.Y. Slip Op. 04327 (June 7, 2016); People v. Reynolds, ___N.Y.3d___, 2016 N.Y. Slip Op. 04323 (June 7, 2016); People v. Mack, ___N.Y.3d___, 2016 N.Y. Slip Op. 04321 (June 7, 2016); People v. Williams, 27 N.Y.3d 212 (2016) (“necessity of preservation is the rule rather than the exception”); People v. Jurgins, 26 N.Y.3d 607 (2015); People v. Medina, 18 N.Y.3d 98 (2011). This rule is designed to alert the trial court to the error and provide that court with the opportunity to correct it while the opportunity still exists. People v. Gray, 86 N.Y.2d 10, 20 (1995). As such, the rule “serve[s] . . . judicial economy by eliminating the need for new trials” People v. Vidal, 26 N.Y.2d 249, 254 (1970); see also People v. Liccione, 50 N.Y.2d 850 (1980). The failure to properly raise an argument in the trial court divests this Court of jurisdiction because it only has the authority to review properly presented questions of law. See C.P.L. §§ 470.35, 450.90; Morris, 2016 N.Y. Slip Op. 04327 at *3; Mack, 2016 N.Y. Slip Op. 04321at *6. If a court nevertheless rules on the specific question raised on appeal at the instance of a party, however, the issue will be deemed preserved. C.P.L. § 470.05; People v. Wallace, __ N.Y.3d __, 2016 N.Y. Slip. Op. 03210 (April 28, 2016); People v. Graham, 25 N.Y.3d 994, 996 (2015). 62 Under this Court’s precedent, preservation applies to the propriety of applying a particular legal standard for example. In People v. Wells, 15 N.Y.3d 927, 928 (2010), defendant argued that the narrower standard for discharge of a sworn juror under one section of the C.P.L. should apply, but never so contended before the trial court. Neither defendant’s argument in the trial court that the discharge was unlawful nor the trial court’s ruling on the propriety of the discharge preserved the issue, which this Court held was beyond its power to review. See also People v. Turriago, 90 N.Y.2d 77, 80 (1997). Here, defendant never argued that the People were required to establish authenticity by clear and convincing evidence, or that they could not rely on circumstantial evidence to do so. Never once during the protracted colloquy with the Court, either when admission of the exhibits was first proposed or after the foundation was laid and the People offered it for admission, did defendant argue that the People must demonstrate the authenticity by clear and convincing evidence (A: 69-83, 182-95). Nor did the trial court rule on this question, as that evidentiary standard was never mentioned. Similarly, defendant did not allege, either when admission of the exhibits was first proposed or later, that the People were not entitled to establish authenticity by circumstantial evidence, much less that the circumstantial evidence showing applied differently depending upon the financial means of the 63 proponent, as he now maintains. As such, these issues are beyond this Court’s power of review. Moreover, it was particularly important here for counsel to be specific. There were, at the time of trial, few if any New York cases addressing the authentication of social media evidence, and the trial court relied on the parties for their theories of admissibility or inadmissibility. Additionally, it should be noted that this Court has mentioned the clear and convincing evidence standard only twice, the last time being 30 years ago and in a case where tape recordings were at issue. In addition, commentators have noted the inconsistent references to, and application of, the standard. See Barker, § 9:1, Martin, § 4.2, p. 115-18. Still further, this Court has often allowed circumstantial evidence to authenticate real evidence. See, e.g., Mirenda, 23 N.Y.2d at 453-54; Lynes, 49 N.Y.2d at 292. Thus, it was incumbent upon defendant to alert the trial court to any of these arguments, which the trial court could otherwise have easily overlooked with regard to this novel issue. Defendant, however, did not. In any event, these arguments, even if they could be reviewed, are meritless. Initially, defendant’s argument that the People were precluded from satisfying authentication requirements by circumstantial evidence because only those with limited financial means may do so is refuted by this Court’s caselaw. Indeed, 64 this Court has expressly allowed the People to use circumstantial evidence in support of authentication, without reference to their means. Lynes, 49 N.Y.2d at 291-92 (reliability of caller’s identity can be found from surrounding facts and circumstances); Mirenda, 23 N.Y.2d at 453(circumstantial evidence viewed together made it more probable than not that glasses connected to defendant); Dunbar Contracting, 215 N.Y. at 416 (authentication of letter and voice over telephone established by circumstantial evidence). Indeed, defendant points to no case from this Court in which it has differentiated, in imposing authentication requirements, between those with means and those without. Nor would it be wise for the Court to adopt such a rule, even if it could. The proposed rule, purportedly distinguishing between those with sufficient means and those without, is completely unworkable. Wholly unexplained is who qualifies as having sufficient means for evidentiary purposes and who does not. Also unexplained is why those with means should be held to a higher evidentiary standard than others. Indeed, applying means testing to the introduction of evidence is unprecedented, whether in this or other contexts, and quite logically so. Foundational elements are focused on reliability and a party’s means do not implicate those concerns. If particular evidence is sufficiently reliable, it should be admitted to inform the jury’s ultimate determination. If it is not sufficiently reliable to be viewed 65 by a jury, it should not be admitted, regardless of the proponent’s means. In the absence of any explanation addressing these critical issues, defendant’s rule cannot withstand scrutiny. Moreover, as discussed above, other courts considering authentication specifically in the context of social media evidence have similarly found circumstantial evidence to be sufficient when offered by the state in a criminal case. See People v. Pierre, 41 A.D.3d 289, 291 (1 Dept. 2007)(internet instant messagest offered by People properly authenticated as authored by defendant through circumstantial evidence); Vayner, 769 F.3d at 130 (proof of authentication may be direct or circumstantial, not distinguishing between government and defendant); O’Neil v. State, 2015 WL 6447254 (Md. Ct. Spec. App. October 26, 2015)(state sufficiently authenticated Facebook messages based upon circumstantial evidence); Assi, 2012 WL3580488; State v. Eleck, 130 Conn.App. 632 (Conn. App. Ct. 2011)(electronic document can be authenticated by direct testimony or circumstantial evidence, without drawing distinction); see also Barker, § 9.9(acknowledging that electronic communications are “typically” authenticated by circumstantial evidence, without drawing distinction). Nor does defendant provide any reasonable basis for this Court to deviate from the long-standing thoroughly entrenched principle that a foundation for evidence can be established by direct or circumstantial evidence. 66 Similarly, were it reviewable, defendant’s assertion that the clear and convincing standard of proof applies to the authenticity of social media evidence could not prevail. This Court has rarely mentioned that standard in connection with authentication, having only done so in two cases dealing with audio recordings, finding on each occasion that the standard was met. See McGee, 49 N.Y.2d at 59-60; People v. Ely, 68 N.Y.2d 520 (1986). Moreover, as evidentiary experts have noted,14 the rule has not been applied consistently. See Barker, § 9:1, p. 358-59. Even as to the authentication of fungible evidence, this Court has not referenced the clear and convincing standard, holding instead that only “reasonable assurances” of unchanged condition are required and that any gaps in the chain of custody go to weight and not admissibility. Julian, 41 N.Y.2d at 344. Based on these inconsistencies, leading evidentiary experts have questioned the application of this higher standard and have noted that this Court has not provided reasons to support its necessity. Martin, § 4.2, p. 116. In addition, as authority for the standard, this Court cited older precedent from federal courts, which have since expressly adopted a preponderance standard in The clear and convincing standard applied to audio recordings in McGee was not14 precedential to all real evidence because McGee only concerned audio recordings and the second time this Court applied the standard to the authentication of real evidence, that too was a case that concerned only an audio recording, see Ely, 68 N.Y.2d at 522. 67 the federal rules of evidence. In fact, the Supreme Court has expressly rejected the15 application of a higher standard. Bourjaily v. United States, 483 U.S. 171 (1987). In discussing the preponderance of evidence standard the Supreme Court explained that it: ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. . . we find ‘nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.’ Bourjaily v. United States, 483 U.S. 171 (1987), quoting Lego v. Twomey, 404 U.S. 477, 488 (1972); see also Huddleston v. United States, 485 U.S. 681 (1988)(questions of conditional relevance proved by preponderance of evidence). Significantly, this standard applies to social media postings in the federal system, as well. See United States v. Brinson, 772 F.23d 1314 (10 Cir. 2014)(upheld admission of Facebookth messages posting); Vayner, 769 F.3d at 129-30. Furthermore, courts of other states have applied a preponderance or similarly lower standard to social media evidence, showing that a higher standard is unnecessary and unwarranted. See Commonwealth v. Purdy, 459 Mass. 442 (Mass. 2011) (preponderance of evidence that exhibit was what proponent claimed); see also The Second Circuit has apparently continued to adhere to the clear and convincing evidence15 standard in audio recording cases only. Commentators have noted the anomalous nature of these rulings, given the federal rules. Martin, § 4.2, p. 116, n. 17. 68 Tienda, 358 S.W.3d at 639, 642; State v. Palermo, 129 A.D.3d 1020 (N.H. 2015)(under NH rules of evidence, prima facie evidence and bar for authentication not “particularly high”); O’Connor v. Newport Hospital, 111 A.3d 317 (R.I. 2015)(not particularly high standard to authenticate evidence; proponent must demonstrate by sufficient evidence that exhibit is what it purports to be); Smoot, 315 Ga. App. at 110; see also Smith v. State, 135 So.3d 424 (Fla. Dist. Ct. App. 2014) (prima facie showing); Parker, 85 A.3d at 687-88 (adopting Texas rule). Moreover, jurisdictions which initially expressed scepticism and appeared to apply higher standards have since rejected those additional requirements. When the Maryland Supreme Court first considered the authenticity of social media evidence in Griffin v. State, 419 Md. 343 (Md. 2011), it held that a printout of an image from a social media site required a greater degree of authentication than merely identifying some of the information on the site as belonging to the purported author of the site, and identified the specific nature of the proof required. It held that social media evidence could “only be authenticated through the testimony of the creator, documentation of the internet history or hard drive of the creator’s computer, or information obtained directly from the social networking site.” Griffin, 419 Md. at 363-65; see also Parker, 85 A.3d at 683. 69 But four years later, this more stringent requirement was rejected by that same court. Just last year, the Maryland Supreme Court adopted the Vayner approach, which sets forth, as discussed above, that a proponent must advance “sufficient proof,” direct or circumstantial, that a reasonable juror could find in favor of authenticity – that the exhibit is what the proponent claims it to be. Sublet, 442 Md. at 666-673. In Sublet, the Maryland Supreme Court explained that since the time Griffin was decided, there had been a proliferation of cases addressing authentication of social networking websites and postings, and the court discussed, at length, Griffin and Vayner. It embraced the Vayner standard, distancing itself from its prior rigid standard for establishing authorship of social media postings. The shift in the Maryland Supreme Court’s position is consistent with the current trend in which courts have refrained from requiring a specific type, or higher quantum, of proof for electronic evidence. United States v. Hassan, 742 F.3d 104, 133 (4 Cirth 2014)(Facebook pages and Youtube videos); People v. McMahen, Docket No. 324423, 2016 WL 1230847 (Mich. Ct. App. March 29, 2016)(Facebook posts); People v. Augustine, 2016 ILApp(2d) 14158-U, 2016 WL 1035722 (Ill. App. Ct. March 14, 2016)(text messages); State v. Ford, 782 S.E.2d 98 (N.C. Ct. App. 2016)(Myspace page); Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015)(Twitter messages); Pavlovih v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014); Parker, 85 A.3d at 70 682-83 (Facebook page); Simmons v. Commonwealth, 2012-SC-0000645-MR, 2013 WL 674721 (Ky. 2013)(Facebook messages); Tienda, 358 S.W.3d at 637 (Myspace pages); State v. Eleck, 130 Conn. App. 632 (Conn. App. Ct. 2011)(Facebook messages); People v. Valdez, 201 Cal.App.4th 1429 (Cal. Dist. Ct. App. 2011)(Myspace page). 16 This Court should follow the consensus of jurisdictions and hold that the authenticity of social media evidence may be demonstrated by a preponderance of the evidence. Setting a high burden of proof for the admissibility of such evidence hinders the truth seeking function of trials, as it precludes any consideration of the evidence by the jury, for whatever weight they might accord it, as aided by the arguments of the parties. It also places onerous and unrealistic burdens on the proponents of such evidence, whether they are civil litigants, prosecutors, or defendants in criminal cases seeking to introduce exonerating evidence. Moreover, under the preponderance rule, the jury assesses the integrity and weight of the evidence and may only consider it if it believes that the exhibit is what the proponent Similarly, while a higher standard was required in the lower court decision in Lorraine v.16 Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), which was relied upon by the Griffin court, in a recent law review article, the authoring jurist, Judge Paul Grimm, described the application of a high burden of proof for the authentication of this type of evidence as unnecessary. Paul W. Grimm, ET. AL., Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433, 458 (Spring 2013) (“Grimm”). He further explained that requiring the proponent to introduce sufficient facts to persuade a reasonable juror that the evidence was created by the person alleged and that places the burden on the opponent to object and provide facts demonstrating that the person did not create the exhibit is a more reasoned approach. 71 claims it to be – a social media posting attributable to the defendant (or some other relevant individual). As such, setting a high burden for its admission is not necessary. Nor is it necessary to require such a high burden that it requires litigants to virtually have a mini-trial on the admission of this evidence and require them to conclusively prove it is what it purports to be, as that is well beyond what ordinary evidentiary principles require. Miranda, 23 N.Y.2d at 453; State v. Barnes, et al., 803 F.3d 209 (5th Cir. 2015); Chin, 371 F.3d at 37 (proponent need not “rule out all possibilities inconsistent with authenticity, or [] prove beyond any doubt that the item is what it purports to be”)(internal quotations omitted). And this Court’s limited references to the clear and convincing evidence standard has only been applied in audio recording cases, and there not uniformly. For the reasons discussed above, it should not be expanded. b. Defendant’s argument that the People were required to show that the photograph was a fair and accurate depiction of an actual event misunderstands the nature of social media evidence generally and in this case. Defendant argue that the People failed to prove that the image contained in the social media posting was a fair and accurate depiction of an actual event. But defendant fails to understand the significance of social media postings in general as well as applied to this case. Indeed, courts addressing the authentication of photos 72 or images in social media postings have not required such testimony, nor was any necessary here. Social media postings generally have significance because of the adoption of the posting by the person who posted it. Thus, whether the posting is a comment, an image or a video, it ordinarily discloses something relevant to the case of which the profile owner is aware, and often condones or advocates, depending upon the context. Thus, for example, in a case where the defendant is accused of killing a man through the use of his dog, the presence of rap song and videos tending to prove that defendant knew his dog was vicious and that he was proud of this fact on the defendant’s social media account is relevant. See Ford 782 S.E.2d at 103-05. This is so whatever the provenance of the videos, or even whether they are videos of events that actually took place. It is the posting of the video and the awareness and/or adoption by the owner of the content that ultimately establishes its relevance. For this reason, courts that have been faced with the admission of photographs on a social media website have generally not required proof that the photographs are fair and accurate depictions of actual events. People v. McMahen, Docket No. 324423, 2016 WL 1230847 (Mich Ct. App. March 29, 2016); Ford, 782 S.E.2d at 104; see also Kincade v. State, No. 63563, 2014 WL 6609504, at *7 (Nev. Nov. 20, 2014); Jones, 318 P.3d at *4 (printout of images on webpage authenticated as accurately reflecting 73 the image on website). Thus, the accuracy of the image itself is not a foundational requirement to demonstrate the authenticity of the posting. Here, defendant’s image was relevant because it showed that defendant was, at a minimum, familiar with the specific type of unusual weapon used in this case – a multi-colored nine millimeter weapon, specifically with a silver ejection port, which was also the same size, type, and had the same barrel as the weapon used in this case. Moreover, by posting a picture of himself brandishing the weapon, defendant showed an affinity for the specific type of handgun used in this case. Indeed, the posting of the photo was the equivalent of a statement by the defendant that he liked the exact type of weapon that was used in the robbery in this case. Thus, whether the photo was real, “photoshopped,” or otherwise digitally created or altered, it was defendant’s adoption of it that was significant. Thus, the People were not required to prove that the photo was an accurate depiction of an actual event. c. The possibility of creating false social media accounts or other tampering went to the weight and not the admissibility of the evidence. Defendant argues that the social media evidence in this case should have been excluded because of the possibility that someone else had created the website or tampered with the photo. As explained at some length above, a mere possibility of tampering is insufficient to defeat authentication under this Court’s cases where 74 such events are “improbable.” Similarly, under the prevailing standard for the authentication of social media evidence, the mere possibility that another was responsible for the website or the posting, without any evidence or motive supporting those assertions in the individual case, does not preclude admission. Here, there was no evidence or reason to believe that another person was responsible for the website or posting, and defendant’s arguments to that effect were properly made to the jury, which ultimately rejected them. As noted above , see, p. 47, supra, this Court’s decisions make clear that, where the People seek to attribute evidence to the defendant, they need only show a sufficient connection to defendant to be relevant and that such connection is not so tenuous to be improbable. See Mirenda, 22 N.Y.2d at 453; see also, Lynes, 49 N.Y.2d at 293. The contrary possibility goes to the weight of the evidence to be accorded by the jury, “aided as it could be by the instruments of cross-examination, counsels’ arguments and other fact-finding tools available at the trial level – to decide whether, as Learned Hand put it, ‘The chance that these circumstances should unite in the case of some one [other than the defendant being responsible is] so improbable’” as to be rejected. Lynes, 49 N.Y.2d at 293; see also Dunbar Contracting, 215 N.Y.2d at 422-23 (cross establishing that witness’s identification of defendant’s voice during phone call was a “guess” went to weight not 75 admissibility). This long-standing principle has been applied with consistency by the Appellate Divisions. People v. Racks, 125 A.D.3d 692 (2d Dept. 2015)(possibility another inmate used defendant’s book and case and pin to make call from Riker’s Island went to weight of evidence); People v. Costello, 128 A.D.3d 848 (2d Dept. 2015)(discrepancy on date of surveillance video and burglary implicated weight of evidence, not admissibility); People v. Nevado, 22 A.D.3d 383 (1 Dept.st 2005)(differences in lighting and season when photo taken of area where officer observed drug sale went to weight); People v. Beverly, 5 A.D.3d 862 (3d Dept. 2004)(gaps in chain of custody excused when reasonable assurances of identity and unchanged condition); People v. Rivera, 184 A.D.2d 153 (1 Dept. 1993)(gaps inst chain of custody go to weight). Moreover, the concern about tampered evidence is not new to social media evidence and has been around since the birth of our Country. Sublet, 442 Md. at 659 (discussing, in this context, challenges to authenticate writings “especially in the early period of the Republic”). As one Pennsylvania court explained when discussing the concern about tampering with email evidence, “the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen.” In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005)(intermediate appellate court). In all 76 these cases, the opponent of evidence is always “free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar challenges go to the weight of the evidence-not its admissibility.” Chin, 371 F.3d at 38 (emphasis in original); see also Vayner, 769 F.3d at 131 (quoting Chin for proposition that the opponent’s challenges to reliability, importance, or interpretation of evidence go to weight, not admissibility). Almost all other jurisdictions concerned with the possibility of tampered social media evidence also consider this issue relevant to the weight this evidence should be accorded by the jury. State v. Palermo, 129 A.3d 1020 (N.H. 2015)(possibility someone tampered with defendant’s Facebook account did not preclude authentication. State not required to “rule out all possibilities inconsistent with authenticity or prove beyond any doubt defendant authored the messages.”); Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015)(any inconclusiveness as to what the exhibit purports to be goes to its weight, not its admissibility); State v. Burns, M 2014-00357-CCA-R3-CV, 2015 WL 2105543 (Tenn. Ct. Crim. App. May 5, 2015); State v. Snow, 437 S.W.3d 396 (Mo. Ct. App. 2014) (weaknesses in authentication go to weight); Jones, 318 P.3d at *6 (whether defendant was author concerned weight of evidence); Tienda, 358 S.W.3d at 646 (after the People demonstrated evidence to support that defendant created and maintained social media pages, possibility that he 77 was not responsible goes to weight); Assi, 2012 WL 3580488 (defendant’s argument that no witness or evidence proved that he was responsible for My Space page goes to weight, not admissibility); State v. Bell, CA 2008-05-044, 2009 WL 1395857 (Ohio Ct. App. May 18, 2009); see also United States v. Safavian, 435 F.Supp.2d 36, 41 (D.D.C. 2006)(“possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, anymore than it can be the rationale for excluding paper documents” . . . absent specific evidence of alteration court refused to exclude emails); Commonwealth v. Purdy, 459 Mass. 442 (Mass. 2011)(defendant’s uncorroborated testimony that others used his computer and that he did not author the emails was relevant to weight not admissibility); People v. Clevenstine, 68 A.D.3d 1448 (3d Dept.) lv. denied, 14 N.Y.3d 799 (2010); People v. Agudelo, 96 A.D.3d 611 (1 Dept.), lv. denied 20st N.Y.3d 1095 (2013). Legal commentators and evidentiary experts have agreed that, once the authenticity of social media evidence has been established, circumstantially or otherwise, the concern about tampering is relevant to the weight the exhibit should be given. See Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in 78 Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues, 19 Rich. J.L. & Tech 11 (2013). 17 Here, too, the People established defendant’s connection to the account, and concerns that unidentified and unknown others could have been responsible went to the weight, not the admissibility, of the evidence. The People showed that the username incorporated defendant’s name, that the single profile photo used to identify the account owner was a picture of defendant, and that the social media account contained 24 additional photos, all of defendant, which made it very likely that it was defendant who created and maintained the account. Moreover, in the specific context of this case, it was highly unlikely that someone else created the account or posted the photo in question. This was not a gang prosecution or a case in which the parties were previously acquainted at all. To the contrary, the undisputed evidence showed that defendant and the identifying witness, Mr. Louisma, were complete strangers, and defendant has never contended otherwise. Nor has defendant suggested another person with a motive to have created such a false social media account, much less often a possible motive for such a person to engage in such an endeavor. Available at http://jolt.richmond.edu/ v19i3/article11.pdf (courts largely erring on side of17 admissibility and leaving any concerns about authorship or legitimacy of social media evidence as weight issue for jury); Grimm, at 458(“When plausible evidence of both authenticity and inauthenticity” evidence should not be excluded). 79 And it is equally, if not more, unlikely that someone not connected to the case created the webpage or happened to post on it a picture of defendant that, by pure coincidence, showed defendant with the exact type of two-toned nine millimeter weapon with the silver ejection port that was used during the robbery here. Such a random occurrence was indeed beyond “improbable,” and defendant has never offered any evidence or reason to believe that this was so. In these respects, this case is different from others in which courts have found specific circumstances giving rise to a possibility of tampering. In Vayner, 769 F.2d at 132-33, for example, the chief prosecution witness was a cooperating witness who knew defendant, and had ample motivation to create false evidence. 769 F.3d at 132-33. Indeed, the Court specifically noted that “all the information contained on the VK page allegedly tying the page to [the defendant] was also known by [the cooperating witness] and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant.” Id. at 132; see also United States v. Jackson, 208 F.3d 633 (7 Cir. 2000) (court refused to allow defendant to admitth postings from white supremacists website which took credit for crimes defendant accused of because lacked authentication because defendant was a skilled c computer user and could have put posting in website herself). Similarly, in Sublet, 442 Md. at 671-72, the Maryland Supreme Court disallowed social media evidence in only one 80 of the three cases before it, and did so based on testimony from the creator of the social media page that she did not author the relevant posts and that she often lent out her password and other information allowing others to post for her. Here, defendant pointed to no such evidence. Moreover, defendant was allowed to, and did, present his arguments to the jury. In summation, defendant argued at length that the discovery of the photo in the middle of the trial was suspicious, that it was probably posted by someone to secure defendant’s conviction, that there was no proof that it was genuine, and that it could easily have been altered and defendant’s head “switched” (A: 289-91). The jury was free to accept or reject defendant’s arguments about potential tampering of the evidence and its purportedly uncertain origin and assess the weight of this evidence accordingly. For this and other reasons, defendant’s complaint that even if the website belonged to him, the posting itself was not attributable to him should be rejected. Initially, that argument is not preserved for appellate review. In order to raise an issue in this Court, a defendant must raise it at the appropriate time in the trial court. C.P.L. § 470.05(1); see also People v. Lane, 7 N.Y.3d 888 (2006). Where a court defers consideration of an issue, counsel must raise his arguments when the court decides it, or any contention raised will be deemed abandoned. See People v. Graves, 81 85 N.Y.2d 1024, 1027 (1995). Here, while counsel initially mentioned concerns that the People would not be able to establish the circumstances of the posting of the photograph itself, this was before any foundation was attempted. The court merely ruled that it would allow the People the opportunity to lay a sufficient foundation and it would consider the foundation at that time. As such, it was incumbent upon counsel to raise his formal objection at the time the foundation evidence was presented or, at the least, refer back to his earlier arguments and state that he was relying upon these reasons to object to the foundation. This he did not do. Even if the issue had been properly preserved, it should be rejected. Again, it was highly unlikely that someone other than defendant posted such a picture. The possibility that another person, by happenstance, would choose to randomly post a photo of defendant with the precise same type of weapon used in the robbery would be far too coincidental a circumstance and remote a possibility to justify the exclusion of the photo altogether. Nor was there any motive for any party in the case to implicate defendant. Moreover, nothing in or on the picture itself indicated that another posted it, as would ordinarily be the case on social media pages. This possibility went to the weight to be accorded to the jury, which heard counsel’s argument in this regard and rejected it. Thus, no error occurred in this regard. See Ford, 782 S.E.2d at 106 (photos and screenshots from relevant videos 82 properly admitted where defendant connected to website; no evidence as to specific postings); Snow, 437 S.W.3d at 402-03 (girlfriend’s testimony that she authored messages on defendant’s Myspace account to falsely implicate him went to weight after sufficient evidence demonstrated defendant authored messages). Nor does the newness of social media evidence require a different result. Historically, when new technological evidence makes it first entry into a courtroom, judges often respond conservatively, increasing the burden of authentication. See Cunningham v. Fair Haven & W.R. Co., 72 Conn. 244 (Conn. 1899)(photographs dangerous and misleading); Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 2 (2009). But this additional burden usually dissipates over time after its use increases and the courts become acclimated to the type of evidence. See generally McCormack, § 227 (“As with the advent of the telegraph, the computer, and the internet, an initial conservative response of these courts have been to increase the burden of authentication on the proponent . . .[but] the perceived need for this additional burden may dissipate ”); see also Schoen, at 1-2 (“efforts to admit social media evidence are often met with a sentence of ‘judicial skepticism’ about reliability, similar to the concern that arose when other kinds of computerized evidence began to regularly appear in courtrooms in the mid-1990's”). 83 With social media evidence, other courts have already gone through this stage of skepticism and have come to a consensus regarding the types of showing that are necessary. For example, what was initially considered the “Maryland” approach requiring a higher burden, see Parker, 85 A.3d at 686; Griffin, 419 Md. at 344, has been effectively overruled by subsequent Maryland high court cases. See Sublet, 442 Md. at 655-663, 678. Similarly, Judge Paul Grimm, the author of one of the early cases on social media evidence imposing a high standard, see Grimm, at 458, has since changed his opinion, coming to the conclusion that after the proponent produces enough evidence for a reasonable juror to conclude that the evidence was attributed to the purported creator and the opponent’s objection is based upon speculation and conjecture that someone else created the evidence, this question presents an issue of weight for the jury to consider. Grimm, at 458. Thus, both courts and commentators with experience dealing with social media evidence have concluded that no additional burden of refuting speculative possibilities of tampering is required in this context. Commonwealth v. Campbell, 58 WOA 2014, 2015 WL 6167405 (Pa. Super. Ct. 2015): Jones, 318 P.3d at *6; Kincade v. State, No. 63563, 2014 WL 6609504 (Neb. 2014); Burgess, 292 Ga. at 823-24; Smoot v State, 316 Ga.App. at 109; Parker, 85 A.3d at 685-88, 823-24. 84 Defendant posits that the concern about tampering are greater with social media evidence, requiring a higher standard specifically in this context. But defendant has made no showing in this regard. He called no expert to suggest that the threat here is greater than in other contexts, did not introduce evidence on the incidence of false social media account creation, and did not elicit evidence on the frequency of such events from any of the People’s witnesses. Even now, defendant presents at best anecdotal evidence of falsification. But anecdotal evidence of falsification could be marshaled with regard to any other form of evidence as well. Letters have been forged since writing has existed, for example, and ordinary photos have always been subject to distortion and manipulation. Nevertheless, this possibility alone does not preclude admission of this evidence. A different conclusion is not required here. See, e.g., Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015); In re F.P., 878 A.2d at 93-94. Defendant’s related argument that the possibility of tampering with social media evidence affects its admissibility and not its weight because jurors cannot recognize when this evidence has been altered (Def. Br. at 37) is also unpersuasive for many of the reasons discussed above. First, as with most social media evidence, the photo here was relevant because it was posted on defendant’s social media page and even if it was altered, “photoshopped,” or manufactured before 85 that time, defendant’s posting of it established his familiarity with, and affinity for, this unusual, multi-colored nine millimeter weapon of the same type as the one used in the robbery. See pp. 54, 76, supra. Second, as required under the prevailing national standard, the People’s testimony established the absence of tampering as relevant to social media evidence: Det. Sheehan testified that the exhibit was a fair and accurate representation of what was on the website, thereby showing that the printout of the photo was not distorted or altered. See Smoot, 316 Ga.App. at 102. Third, as with any type of real evidence, the defendant was free to introduce evidence, including expert testimony, as to any actual or possible alteration. Thus, if in fact the issue of alteration is significant in a given case, juries need not be without guidance on this issue. Fourth, it was, simply unlikely that any such alteration occurred, as the parties were unknown to each other and no one had a realistic motive to alter the picture, nor would an uninterested internet observer have been likely to have randomly altered such a photo to be relevant in this case four months before the crime occurred. As a result, consistent with traditional evidentiary principles, the possibility that an exhibit has been tampered with was properly presented to the jury in order for it to assess the weight of the evidence, rather than precluding admission of the posting altogether. The trial court did not abuse its discretion in this regard. 86 B. Defendant Waived His Claim That the Exhibit Was Too Prejudicial When He Told the Court That the Probative Value Versus Prejudicial Effect Analysis Was “Not the Issue.” At trial, counsel unequivocally told the trial court that his objection was to the People’s ability to lay an adequate foundation and that the probative value versus prejudicial effect balancing test was “not the issue.” By taking this position, counsel waived this claim and cannot present it here. The record clearly establishes that defendant waived, as well as failed to preserve, any complaint that the admitted evidence was too prejudicial. When18 challenging the admission of this evidence before the trial court, defendant failed to complain that the social media evidence was erroneously admitted because of its low probative value and high potential for prejudice. Instead, he merely challenged the People’s ability to authenticate this evidence. A defendant waives a claim when he intentionally relinquishes a known right. Johnson v. Zerbst, 304 U.S. 458 (1938); People v. Prescott, 66 N.Y.2d 216, 219, n. 1 (1985); People v. Thomas, 53 N.Y.2d 338 (1981). Ordinarily a defendant must be shown to know that the right existed before he will be deemed to have In fact, defendant did not maintain in the Appellate Division that this issue was preserved. 18 See Defendant's Appellate Division Brief at 40 (“These errors were partially preserved for review. Defense counsel made multiple objections that there was no foundation upon which to admit the photo . . . and objected that the prosecutor had no basis in the record to argue that appellant had posted the photo online”). 87 waived it. A waiver has been found when a defendant expressly consents to a particular procedure, makes an argument in the trial court that contradicts his position on appeal, or otherwise acts in a manner inconsistent with his position on appeal. See, e.g., Attorney General v. Firetog, 94 N.Y.2d 477 (2000) (by agreeing to disclose a portion of grand jury minutes before counsel filed motion, Attorney General waived argument that court could not order disclosure because motion not filed); People v. Lewis, 5 N.Y.3d 546 (2005) (although defendant originally objected to charge, his participation in writing supplemental instruction waived objection); People v. Mills, 1 N.Y.3d 269 (2003) (defendant who affirmatively requests lesser charge waives statute of limitations defense); People v. Rodriguez, 50 N.Y.2d 553 (1980) (bringing speedy trial motion and then proceeding to trial before motion is decided constituted a waiver). Additionally, only those arguments a defendant raises below challenging an alleged error “with specificity” at trial are preserved for review on direct appeal. C.P.L. § 470.05(2); People v. Hawkins, 11 N.Y.3d 484, 491- 494 (2008). When a defendant limits the grounds for his objection, he only preserves for appellate review the specific ground he raised in the trial court. Graves, 85 N.Y.2d at 1026-27; see also Wallace, 2016 N.Y. Slip Op. 03210 *1; People v. Nelson, ___ N.Y.3d __, 2016 N.Y. Slip Op. 02554 (April 5, 2016); People v. Miranda, 27 N.Y.3d 931 (2016). 88 Below, when challenging the admission of the social media evidence, counsel specifically limited his arguments to the alleged lack of authentication for this evidence and expressly disavowed any concern with the prejudicial effect of the evidence as compared to its probative value. Indeed, counsel explained to the court, “while a photograph would normally be admissible if it’s probative, etc., and [the prosecutor] cites a fourth department case about whether or not it’s prejudicial or probative, that’s not the issue” (A: 71)(emphasis supplied). Counsel then asserted that the prosecutor would not be able to lay a foundation because she could not establish that the photo was accurate and their witnesses could not testify to when the photo was taken, by whom it was taken, and under what circumstances it was taken (A: 72). As such, counsel expressly told the court that he was not contesting the issue of the relative probative value of the exhibit versus its prejudicial effect. By making such an argument, counsel removed this aspect of the evidentiary calculus from the court’s consideration, waiving any such argument for appellate review. In addition to waiving this issue, counsel also failed to preserve it by failing to argue it before the trial court. While counsel did, at one early point, mention the possibility of prejudice, he referred solely to the possibility that jurors might be tempted to go onto the website and look at defendant’s social media page themselves (A: 73, 79-80). 89 And even this was raised solely in connection with defendant’s request that the testimony regarding authentication be taken outside the jury’s presence (A: 73-74). At no point did defendant argue that the contents of the exhibit was too prejudicial because it depicted defendant with a gun and thus outweighed its probative value. Thus, defendant failed to preserve and, indeed, waived his current argument that the prejudicial effect of the image outweighed its probative value. Despite this disavowal below, defendant now claims that counsel’s statement that balancing the prejudice versus probative value was “not the issue” was not an abandonment of his claim that the evidence was too prejudicial (Def. Br. at 57, n.4). Rather, defendant now maintains that counsel’s statement should be interpreted as an argument that the court did not have to reach the issue of probative value versus the prejudicial effect of this evidence because the People would not be able to lay the requisite foundation. This argument is unavailing. First, defendant’s express words were clear and their plain meaning apparent. Indeed, counsel specifically told the court that the prejudicial effect of the exhibit as compared to the probative value was “not the issue” and focused the court on the foundation requirements. The court was thus entitled to take counsel at his word. Second, even if defendant’s position was that the People could not lay a proper foundation, it was still incumbent upon him to make whatever additional arguments he wished to have 90 the court consider, particularly when the court ruled that the exhibit had been properly authenticated. This he never did. Nor is the issue reviewable here under the theory that, despite defendants’ express waiver, the trial court nevertheless had a fair opportunity to review this issue, as defendant now argues (Def. Br. at 57). Once counsel indicated that he was not contesting that the prejudicial effect outweighed its probative value, it was proper for the court to decline to review it. Moreover, nowhere in the record did the court explicitly decide this issue, which could separately have preserved it for appellate review. See C.P.L. § 470.05(2). In short, defendant waived any issue related to the weighing of the probative value of the evidence against its prejudicial effect when counsel told the court that this was “not the issue.” He similarly failed to preserve the issue when he solely argued that admission of the evidence was improper because a proper foundation could not be laid. For both of these reasons, the issue is unreviewable here. In any event, the trial court did not abuse its discretion in admitting this evidence as it was highly probative of defendant’s identity as the gunman and its probative value was not outweighed by the potential prejudice. As noted above, “Evidence is relevant if it has any tendency in reason to prove the existence of any 91 material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.” Scarola, 71 N.Y.2d at 777; see also People v. Lewis, 69 N.Y.2d 321, 325 (1987); Richardson, § 4-101. “Relevance, however, is not always enough, since ‘even if the evidence is proximately relevant, it may be rejected if its probative value is outweighed by the danger that its admission would prolong the trial to an unreasonable extent without any corresponding advantage; or would confuse the main issue and mislead the jury; or unfairly surprise a party; or create substantial danger of undue prejudice to one of the parties.’” People v. Davis, 43 N.Y.2d 17, 27 (1977); see also Scarola, 71 NY2d at 777. Once relevance is established, a trial court’s decision to admit or exclude evidence is a discretionary determination that may not be disturbed unless there was “no legal foundation . . . proffered” or when the ruling was an abuse of the trial court’s discretion. People v. Patterson, 93 N.Y.2d 80 (1990); see also People v. Wilder, 93 N.Y.2d 352 (1999). Additionally, evidence of uncharged crimes or prior bad acts is admissible to prove, inter alia, the defendant’s motive, intent, identity, or lack of accident or mistake, or to complete the narrative of the crime. People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981); People v. Molineux, 168 N.Y. 264, 294 (1901). And a defendant’s possession of a weapon can be used to help establish his identity. See 92 generally, People v. Condon, 26 N.Y.2d 139 (1970); see also People v. Leach, 90 A.D.3d 1073 (2d Dept.), aff’d other grounds, 21 N.Y.3d 969 (2013)(gun properly admitted as evidence of defendant’s identity). Here, defendant’s posting of a picture of himself in possession of the same type of weapon used in the robbery – a two-tone nine millimeter handgun with a silver ejection port identified by the victim as the same size, coloring, and type as the gun used in the robbery and with the silver portion specifically in the same location – was relevant to his identity as the perpetrator. By posting the photo, defendant demonstrated not only his familiarity with this specific type of weapon, but, because the photo showed him personally brandishing such a weapon, that he had a personal connection with the specific type of handgun used in this case. Nor was the prejudicial effect of the posting so great that it was an abuse of discretion to admit it. Indeed, defense counsel made the jury well aware that the origin of the photo was unknown and argued that it could have been created by anyone. He thus emphasized the limitations on the evidence. Moreover, there is no reason to believe that the jury misapprehended the significance of the evidence – the connection that it established to this specific crime – and instead convicted defendant of the robbery simply because he once previously possessed a handgun. To the contrary, the jury was focused on the evidence of guilt of the crime here. The jury 93 asked for several readbacks, and asked questions regarding the particular facts of the investigation. For instance, the jury asked how defendant became a suspect, what a filler was, why defendant’s brother did not testify, and if the white car was ever connected to defendant. They asked all these questions before they ever asked about the victim’s description of the gun. Thus, there is simply no reason to believe that the jury convicted defendant solely because he once had a weapon, rather than because they believed the evidence that he committed the crime here. The lack of conclusive proof that the weapon in the picture was the identical weapon used against the victim does not preclude the admission of the photo. Indeed, it would have been virtually impossible for the witness to have testified conclusively that the weapon in the picture was the exact same weapon. But the victim’s testimony was as close as he or any witness to a robbery could reasonably come in this regard: he identified the size, the barrel, the two-tone coloring, and the specific placement of that coloring on the handgun. Also, he described the gun used in the crime as a nine millimeter weapon, consistent with the image in the exhibit. This provided an ample, and very specific, ground to connect the weapon to the instant crime. Indeed, while this Court has never directly addressed the issue, lower New York courts have consistently held that it is proper to admit a photograph or 94 image of a defendant holding a weapon similar to the weapon used in a crime to establish his identity as the perpetrator and there is no requirement that the gun in the image be the exact gun used in the crime. In People v. Clemmons, 83 A.D.3d 859 (2d Dept.), lv. denied 19 N.Y.3d 971 (2012), the Second Department affirmed the admission of a photograph taken three days before a shooting, showing defendant holding a gun similar to the gun used in the crime. In so ruling, the Second Department held that the photo was admissible to establish defendant’s identity and that its probative value outweighed any prejudicial effect. Clemmons, 83 A.D.3d at 860; see also People v. Alston, 77 A.D.3d 762 (2d Dept. 2010)(proper to admit video of defendant possessing a chrome-colored revolver hours before defendant shot victim); People v. Webb, 60 A.D.3d 1291 (4 Dept. 2009)(photo of defendant holdingth shotgun properly admitted when witness identified defendant and the shotgun from photo and the defendant’s possession of the shotgun was at issue). The lower courts have similarly upheld the admission of evidence, not specifically image evidence, that a defendant possessed a gun similar to one used in a crime to prove his identity. In People v. Brown, 266 A.D.2d 863 (4 Dept. 1999),th the Fourth Department held that evidence that defendant possessed the same caliber gun four days prior to crime was admissible to establish identity. See also People v. Sheriff, 234 A.D.2d 894 (4 Dept. 1996) (upheld the admission of evidence thatth 95 defendant possessed a chrome-plated handgun after the crime because it was relevant to his identity); People v. Bogoniewski, 206 A.D.2d 844 (4 Dept. 1994). The Thirdth Department also upheld the admission of evidence that a defendant possessed a “firearm resembling the one” used in the crime to prove his identity. People v. Rivera, 281 A.D.2d 702 (3d Dept. 2001). The Second Department has held similarly. People v. Jackson, 237 A.D.2d 620 (2d Dept. 1997) (testimonial evidence that five days after crime defendant possessed weapon “resembling” weapon used in crime admissible for identity). Evidence of a defendant’s possession or control of firearms similar to the one involved in the crime has been upheld in other jurisdictions as well when it is relevant to an issue at the trial. For instance, the Sixth Circuit affirmed the admission of a photo of gun sitting on top of a pile of money and marijuana because the gun appeared to be the gun defendant was charged with possessing and this evidence helped establish his dominion and control over it. United States v. Mackey, 249 Fed. Appx. 420 (6 Cir. 2007); see also United States v. Jenkins, 313 F.3d 549 (10 Cir.th th 2002) (trial court did not abuse its discretion when it admitted photos of defendant and others holding firearms and large amounts of cash found in defendant’s storage unit because relevant to numerous issues at trial). The admission of images of guns from social media postings has also been upheld. See Assi, 2012 WL 3580488(photos 96 of guns taken from defendant’s Myspace page relevant to show that he had access to same caliber gun used in crime and had the means to commit the crime); see also Commonwealth v. Williams, 537 Pa. 1 (1994). As support for his proposition that to authenticate evidence of an uncharged possession of a weapon to establish identity for another crime the People must demonstrate that the weapon is the same as that involved in the crime, defendant cites to this Court’s summary decision in People v. Meyers, 22 N.Y.3d 1010 (2013) (Def. Br. at 54-55). There, this Court held that the admission of testimony of the defendant’s possession of a similar caliber gun months before the crime was improper. But here, the evidence admitted did not merely consist of testimony regarding a similar caliber weapon. First, the weapon was similar not only because it looked like a nine millimeter handgun, but, more importantly, because it was the same size, has a similar looking barrel, had two-tone coloring, specifically the same two colors, black and silver, and the coloring appeared just as it did on the weapon used in the robbery – predominantly black with the silver portion on the top. Second, here, the victim actually identified the weapon as looking like the weapon he saw during the robbery in each of these respects. In Myers, no testimony was adduced about the weapon’s size or coloring, much less that the coloring was two-tone and that the silver portion of the weapon had the specific placement of the weapon used 97 in the robbery. Nor was there testimony regarding any other unique feature of the weapon the defendant was seen with before the robbery. And there was no evidence in Myers that the victim saw and identified the weapon that the defendant previously possessed as looking similar to the weapon used in the robbery in all these respects. Still further, this Court emphasized in the opinion that the admission of the weapon was improper “under the facts of this case.” Myers, 22 N.Y.3d at 1011. Therefore, its import should not be generalized and extended to cases where the facts are materially different. See People v. Ramos, 99 N.Y.2d 27, 34 (2002); see also Texas v. Cobb, 532 U.S. 162, 169 (2001). Also inapposite is People v. Zackowitz, 254 N.Y. 192, 196 (1930), in which the People adduced evidence that defendant possessed different caliber weapons than were used in the robbery, which only established that he had a propensity for violence, clearly an improper purpose in 1930, as well as now. Here, the prosecutor had a proper purpose – to establish defendant’s identity – which was a hotly contested issue in this case. See also People v. Brown, 216 A.D.2d 737, 738 n.* (3d Dept. 1995) (evidence of defendant’s possession of similar weapon not admissible where prosecutor merely argued similarity and no witness testified to it). Defendant also claims that the difference of four months between the posting and the crime rendered the former event without probative value as to the 98 latter, and attempts to distinguish the lower court precedent on this ground. (Def. Br. at 55, n. 3). But defendant did not reference this four-month time difference in the lower court in any of the colloquy as affecting its probative value, and thus this issue is not preserved for this Court’s review. Morris, 2016 N.Y. Slip Op. 04327 at *1; Mack, 2016 N.Y. Slip Op. 04321 at *4. Moreover, this delay did not render the evidence non-probative. The relevant time calculation was that defendant posted the photo before the crime here, showing his familiarity with, and access to, the specific type of weapon used in this case before the crime occurred. In addition, the four months that elapsed here was not so remote as to demonstrate an abuse of discretion. Defendant’s also makes much of the popularity of similar guns to support his claim that there was no probative value to the evidence here (Def. Br. at 39-40, 56). But defendant offered no such evidence at trial, and made no argument that the specific gun in this case was so popular that the probative value of the picture was trivial or nonexistent. Thus, this claim is also not preserved for this Court’s review. C.P.L. §§ 470.05, 470.35; Crimmins, 36 N.Y.2d at 230, 242. Moreover, defendant’s citations to gun manufacturer’s websites should carry little weight, as each has a significant interest in claiming that their guns are the most popular. 99 C. Any Error Was Harmless in Light of the Victim’s Unwavering Identification of Defendant, Which Resulted from His Close Attention to Defendant, Who Stood a Mere Arm’s Length Away Throughout this Broad-daylight Robbery. Even if an error had occurred in the admission of this social media evidence, it was harmless. The victim had ideal, broad-daylight conditions to observe defendant, made his observations from only an arm’s length away, was on guard with respect to defendant even before the crime, and remained calm during the encounter, as his actions in first feigning not to understand and then throwing the money to the floor demonstrated. Under these facts, there was no “significant probability”of a different verdict absent the admission of this evidence. Crimmins, 36 N.Y.2d at 237. Initially, the error alleged here is non-constitutional in nature and thus the People are entitled to the benefit of the lower standard for harmless error under Crimmins: the People need only show that there is no “significant probability” of a different verdict, rather than showing, as required with constitutional error – that there is no reasonable possibility of a different verdict. See People v. Grant, 7 N.Y.3d 421 (2006); People v. Schaeffer, 56 N.Y.2d 448 (1982); Crimmins, 36 N.Y.2d at 237. Here, no significant probability of a different verdict existed. Indeed, the victim’s identification of defendant was extremely compelling. First, the victim explained how he took notice of defendant prior to the robbery. He testified that at 100 approximately 10:15 in the morning, on a dry, sunny day, he saw defendant and his accomplice walk past him as he was unloading milk from his truck (A: 107-110). It did not make sense to him that these two men were wearing hoodies, so he stayed “on guard” and explained that “your defense is up” (A: 110, 114). This proves that the victim noticed defendant prior to the robbery and kept looking at him because he found defendant’s and his accomplice’s appearance concerning. Second, the victim’s detailed description of the robbery provides further proof that he paid close attention to defendant and had an ample opportunity to see defendant and remember his face. After seeing defendant and his accomplice walk by, from about four feet away, Mr. Louisma saw defendant pull the waist area of his hoodie up, pull a gun out from his waistband, and point the gun down (A: 110-12, 114, 116). Defendant, who was wearing a hoodie and a skull cap but did not have anything covering his face, got closer and from about an arm’s reach away, defendant spoke to Mr. Louisma, telling him, “Yo, you know what time it is,” and “give it up” (A: 112, 116). After, Mr. Louisma responded that he did not know what defendant meant, defendant then raised the gun up, pointed it directly at Mr. Louisma’s chest (A: 112). As all this occurred, Mr. Louisma was looking directly at defendant’s face and his gun. The victim’s detailed testimony demonstrates that he had a substantial amount of time to observe defendant and his view of defendant cannot reasonably be 101 described as “extremely limited” or “brief,” as defendant now alleges (Def. Br. at 58). Thus, Mr. Louisma’s detailed description of his encounter with defendant in broad daylight, without any obstructions and while defendant was a mere few feet away, also provided strong and clear evidence supporting the identification. Third, the strength of the victim’s identification was supported by his description of the perpetrator, which matched defendant. The victim explained that the perpetrator was a light-skinned black man in his early twenties with a little mustache and braids sticking out from his skull cap or “do rag,” a description that matched defendant’s physical appearance. The line-up photographs that defendant admitted into evidence (see Defense Exhibit A and Defense Exhibit B), depict defendant as a light-skinned black man with some facial hair. In addition, at trial, defendant also displayed attributes that matched this description. When he first identified defendant at the trial, the victim testified that defendant was wearing his hair in braids, just like the day of the robbery (A: 110, 118). In addition to corroborating Mr. Louisma’s description of the robbery, Mr. Davis’s testimony corroborated the victim’s description of defendant as he too noticed that defendant was wearing a hoodie and had brown skin (A: 39, 53). Further, as Mr. Davis watched the robbery in progress, he noticed that Mr. Louisma 102 was looking forward where the gunman was standing (A: 38-39), corroborating Mr. Louisma’s testimony that, during the robbery, he was looking at defendant. Further, the victim’s testimony demonstrates that the victim had a tremendous ability to recall the events of that day. The victim explained in detail the events leading up to the crime, where he had been with his work partner, how they performed their job, how he parked the truck in front of the school, why he parked the truck in that manner that day, and exactly what he did after he parked the truck. It was with this same level of detail and based upon this same recollection that the victim described the gunman and was able to identify defendant. And, while the victim surely was concerned for his safety, he did not shy away from this encounter; nor was he so nervous that it impaired his powers of observation, as defendant now argues (Def. Br. at 59). Indeed, as he stood face-to- face with defendant, Mr. Louisma was so calm that his first reaction was not to give into defendant’s demand, but to pretend that he did not know that defendant was robbing him and brush him off. Then, after defendant clearly indicated that this was a robbery and he wanted the money, Mr. Lousima defiantly threw the money to the ground and did not hand it to defendant or his accomplice, evidencing a stern presence of mind. And while defendant pulled out the gun, spoke to Mr. Louisma, stood there demanding money, and waited as his accomplice picked up the money 103 from the ground, Mr. Louisma was looking at defendant’s face and the gun, as corroborated by Mr. Davis’s testimony. Also, there is no indication that Mr. Louisma ever shied away from this encounter and he had a strong reason to focus on defendant’s face. Mr. Louisma’s reaction demonstrates that he was not so fearful that he did not get a good look at defendant, clearly disputing defendant’s characterization of the victim’s state of mind. Rather, it proves that he stayed calm under difficult circumstances and paid particular attention to defendant from the moment defendant appeared. This explained defendant’s instantaneous identification of defendant from a non-suggestive line-up two months after the crime. Finally, defendant’s own witness corroborated a particular aspect of the People’s evidence. Defendant’s father testified that when he first saw defendant at 1:15 p.m. on the day of the crime, defendant was “balled up” under the covers wearing a long-sleeved t-shirt and had a hood around his neck (A: 256). From this evidence, the jury could reasonably infer that defendant was wearing a long-sleeved hooded shirt. As such, Reverend Price’s description corroborated the People’s evidence that defendant was wearing a hoodie that day. In short, the victim’s identification of defendant was clear, strong, and unwavering. The identification was credible because the victim had an ample opportunity to see defendant’s unobstructed face before and during the robbery from 104 a few feet away on a clear, sunny day. Indeed, this incident was not fleeting – it lasted long enough for the victim to provide an accurate description of defendant’s age, race, skin tone, and his hair length and style to the police. In addition, the victim’s actions and behavior during the incident, as he and his co-worker testified to, demonstrate that he remained calm in the face of the danger presented and his ability to observe and perceive was not compromised. And his identification of defendant in the wholly non-suggestive lineup added to the strength of the People’s case. Defendant, however, argues that the evidence was not overwhelming because it was based upon a one-witness identification (Def. Br. at 58). But this Court has never created a bright line rule barring a finding of harmlessness in one- witness identification cases. See People v. Rice, 75 N.Y.2d 979 (1990) (error to admit victim’s description, defendant’s prompt outcry, but error harmless in one-witness identification, evidence where rape took place in daylight, defendant’s victim immediately recognized him in lineup); People v. Jackson, 70 N.Y.2d 884 (1987)(in one-witness identification, if prosecutor’s comments and officer’s testimony bolstered victim’s identification by referring to defendant as suspect, it would be harmless because victim “unhesitatingly and unequivocally identified defendant at the lineup”). Indeed, this Court has carefully examined the individual facts of each case. Here too, 105 this Court should weigh the relative strength of the identification evidence and not judge it simply based upon the quantity of identifying witnesses. Nor should the victim’s identification be discredited because the detective failed to memorialize every particular detail the victim gave in his description of the perpetrator (Def. Br. at 59). That Det. Sheehan did not write down that the perpetrator had a light mustache and braids does not dilute the victim’s identification of defendant. Indeed, the detective specifically testified that she recalled that Mr. Louisma had said that the perpetrator had some facial hair but that she did not write that down (A: 206). Moreover, the jury was fully instructed on many of the factors defendant now argues proves that the subject identification was not reliable. For instance, the jury was instructed that it should pay careful attention to this one-witness identification case and that they could not find defendant guilty unless they found that the People proved defendant’s identity as the perpetrator beyond a reasonable doubt (A: 327). The jurors were also instructed that they had to decide if the identification was truthful and accurate, and the court set forth the many factors the jurors should use to assist in their evaluation of the identification, including the witness’s capacity for observation, memory, opportunity to observe, the witness’s distance from the robber and any obstructions between the witness and perpetrator, the duration and 106 vantage point during the crime, the description by the witness and whether it matched defendant, whether the witness had a reason to look at and remember the perpetrator, and the mental, physical, and emotional state of the witness (A: 328-30). Nor do defendant’s citations to articles regarding identification evidence generally render the evidence here insufficient (Def. Br. at 58-60). Defendant presented no evidence regarding these propositions in the trial court and thus there is no basis upon which to conclude how, or whether, the propositions apply to the specific facts of this case. Nor did the People have an opportunity to cross-examine an expert in this regard so that they could either demonstrate the lack of applicability of the principles under certain conditions or highlight the aspects of the identification present here which enhance reliability. Additionally, defendant’s speculation as to the jury’s deliberations does not dilute the harmlessness of this alleged error. After analyzing the jury deliberations, defendant concludes that the jury was troubled by this case, that their deliberations reflected doubt, and that they questioned the reliability of the victim’s identification of defendant (Def. Br. at 60-61). The entirety of defendant’s arguments are, however, based upon speculation which is strongly disfavored by the courts. See United States v. Powell, 469 U.S. 57 (1984)(courts generally do not undertake inquires into jury’s deliberative process); People v. Rayam, 94 N.Y.2d 557 107 (2000)(court disfavors inquires into jury’s deliberative process); People v. Tucker, 55 N.Y.2d 1, 7 (1981). Indeed, the time frame of the deliberations and the jury’s notes show that they deliberated carefully and did not rush to convict him simply because there was a photograph of him possessing a firearm. Rather, the quantity and substance of the jury’s requests demonstrate that the jury was diligent in carrying out its responsibility; it thoroughly analyzed all the evidence as demonstrated by its many notes regarding different aspects of the evidence in this case. And the fact that the jury came back with a verdict of guilty after the thorough jury charge on the burden of proof, as well as the charge instructing them to pay careful attention to the identification evidence in this one-witness identification case, does not prove that the jury was troubled or had doubt. The jury’s careful consideration was appropriate, and, if anything, inspires confidence in the jury’s verdict. In his final assertions, defendant argues that the erroneous admission of the social media evidence here was amplified by the prosecutor’s allegedly improper summation comments regarding the gun (Def. Br. at 61). Attorneys are given great latitude in their summation remarks, and a prosecutor’s comments are proper if they are based upon the evidence adduced at trial or are responsive to the defense summation. People v. Smith, 16 N.Y.3d 786 (2011); People v. Marks, 6 N.Y.2d 67, 108 77-78 (1959). And the prosecutor’s comments should be taken in the context of the surrounding remarks and not analyzed in a vacuum. Defendant argues that the prosecutor’s references to the gun and comments that it looked exactly like the gun used in the robbery were improper (Def. Br. at 61). But the prosecutor’s remarks were fair comment on the evidence and the reasonable inferences to be drawn from it. The victim testified that the image of the gun he was shown in the social media posting was “similar to the gun that took place in the robbery,” which he had earlier described as a nine millimeter looking gun (A: 118). When asked how the gun was similar, Mr. Louisma explained that “it looks like the gun,” it had the “the silver piece on top,” the barrel of the gun was the same color as defendant’s gun, and it was the same size as defendant’s gun (A: 131, 148-49). The prosecutor did no more than ask the jury to draw the inference that this level of detail regarding the weapon showed that it looked “exactly like” the weapon used in the robbery. Nor did the prosecutor make herself an unsworn witness when she stated that the victim immediately identified the gun as the one used because it is a fair implication from her comment that she was referring to the victim’s in-court identification of the social media posting, not any viewing outside the jury’s presence (A: 310-11). Therefore, the prosecutor’s comments that it looked like the gun used 109 in the robbery and that the victim immediately identified it in this manner were proper. Additionally, defendant’s complaint that the prosecutor’s statements that defendant posted the photo online were improper because she strayed beyond the four corners of the evidence (Def. Br. at 62) is equally unpersuasive. Again, the prosecutor asked the jury to draw a fair inference from the record, one that rebutted the defendant’s arguments to the contrary in his summation (A: 288-91). Indeed, the prosecutor acknowledged to the jury that there was no direct evidence establishing who posted the photo when she told the jury, “Yeah, we don’t know who put up his personal profile” (A: 309). She simply, and quite expressly, asked the jury to infer, “logically,” that defendant was the one to have done it because it is unlikely that someone else would have been interested in establishing a personal profile for another person. This was a fair inference from the evidence presented. See pp. 55, 76, supra. Moreover, the prosecutor’s argument was a fair response to counsel’s argument that there was no evidence who took the photo, who posted the photo on the website, or under what circumstances it had been posted (A: 289). Thus, the prosecutor’s comments were proper as they were based upon fair inferences from the evidence presented and were a fair response to the defense summation arguments. 110 Finally, defendant argues that the “cumulative effect of the photo and the prosecutor’s unfounded statements deprived [him] of his due process right to a fair trial” (Def. Br. at 62). This assertion cannot be considered on this appeal because defendant never raised any such argument below and thus it is unpreserved for appellate review. See C.P.L. § 470.05(1); People v. Mills, 11 N.Y.3d 527(2008)(whether ineligibility for DLRA re-sentencing violated due process and equal protection unpreserved); People v. Miller, 8 N.Y.3d 937 (2007)(unpreserved claim that defendant did not get a hearing in violation of due process); Matter of Barbara C., 64 N.Y.2d 866 (1985)(constitutional questions not raised in trial court so not preserved and cannot be reviewed in Court of Appeals). * * * In sum, this Court should follow the prevailing national standard on the admission of social media evidence as it reasonably balances the appropriate concerns, allowing the admission of evidence only when there is sufficient evidence for a court or jury to infer that it is attributable to the party the proponent claims, but also permitting a jury to hear and consider evidence relevant to their determination and thereby advance their truth-seeking function. The standard also allows the opposing party to present its arguments undermining the reliability of the evidence to the jury, who may then reject it. Additionally, this standard is consistent with this 111 Court’s caselaw allowing authentication based on circumstantial evidence and holding that the mere possibility of tampering goes to the weight, rather than the admissibility, of the evidence. Under this standard, this Court should hold that the trial court did not abuse its discretion by admitting the social media evidence because the People demonstrated that the exhibit was an accurate copy of defendant’s posting on the blackplanet.com social media page, and adduced ample evidence from which to infer that the page belonged to defendant, including that his last name was part of the username, the profile photo used to identify the owner of the social media account was a photo of defendant, and the remaining 24 pictures on the account were all of defendant as well. Defendant could, and did, present his contrary arguments to the jury, which quite reasonably rejected them. The trial court thus did not abuse its discretion in allowing this relevant evidence to go to the jury. Moreover, defendant’s remaining claim, that the prejudicial effect of the evidence outweighed its probative value, was waived at trial, and cannot be reviewed. Finally, to the extent any error occurred it was harmless because the victim’s identification of defendant was very strong and very detailed. 112 CONCLUSION For the reasons set forth above, the order of the Appellate Division affirming defendant’s judgment of conviction should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: _____________________ Anastasia Spanakos Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO JOSEPH N. FERDENZI ANASTASIA SPANAKOS Assistant District Attorneys of Counsel June 23, 2016 113