This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 58
The People &c.,
             Respondent,
        v.
Chris Price,
             Appellant.




          Tammy E. Linn, for appellant.
          Anastasia Spanakos, for respondent.




STEIN, J.:
          On this appeal, we are asked to determine whether the
People proffered a sufficient foundation at trial to authenticate
a photograph -- purportedly of defendant holding a firearm and
money -- that was obtained from an internet profile page
allegedly belonging to defendant.   We conclude that the People's


                              - 1 -
                                - 2 -                         No. 58

proof fell short of establishing the requisite authentication to
render the photograph admissible in evidence.
                                 I.
            Defendant was convicted by a jury of two counts of
robbery (Penal Law §§ 160.15 [4]; 160.10 [1]).    At the trial, a
witness testified that he was conducting milk deliveries with the
victim when he noticed -- from his vantage point inside the
delivery truck -- that someone was holding a gun about a foot
away from the chest of the victim, who was standing outside the
truck.   After exchanging words with the gunman, the victim threw
a handful of cash from his pocket to the ground.    The gunman's
accomplice gathered the money and the two robbers fled.    The
witness never saw the gunman's face and was unable to identify
defendant at trial as either of the perpetrators.
            Following this testimony, the People informed the court
that they intended to introduce a photograph that was "found on
the internet," which purportedly depicted defendant holding a
handgun.1   According to the People, the victim would identify the
gun in the photograph as the weapon used during the robbery, and
a detective would identify defendant as the individual holding
the gun in the picture.    Defendant objected to the admission of


     1
        The concurrence insists upon referring to the photograph
as a "digitized rendition posted on a social media site." Such
characterization does not alter the fact that the People
proffered the image as a photograph purporting to depict a real-
life, accurate, and genuine representation of defendant holding a
firearm.

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                                - 3 -                          No. 58

the photograph in evidence, arguing that the People had not
proffered a sufficient foundation establishing the authenticity
of the photograph as a fair and accurate representation of
defendant holding a gun and that the photograph had not been
altered.   In response, the People contended that the necessary
foundation would be established through proof that the photograph
was obtained from a publicly available web page that bore an
internet profile associated with defendant's surname and
photographs of him.    Over defendant's renewed objection to the
sufficiency of the proffered authentication, the court ruled that
the photograph would be admissible in connection with the
proposed testimony.
           Thereafter, the victim testified to the circumstances
of the robbery, and he identified defendant as the gunman.     The
victim described the firearm used in the robbery as a 9-
millimeter automatic with a silver rectangular feature on the top
of the barrel, but he admitted that he had no prior familiarity
with firearms.   When shown the portion of the photograph obtained
from the website depicting the gun, the victim testified that the
gun looked "similar" to the gun used in the robbery, but he could
not identify the gun in the photograph as the one held by the
robber.
           A police detective subsequently testified that she
found the photograph in question on the website
"BlackPlanet.com."    The detective had searched defendant's


                                - 3 -
                                - 4 -                           No. 58

surname "Price" and, after scrolling through several pages of
results containing approximately 50 internet profiles -- the
usernames of which incorporated the term "Price" -- the detective
saw a public profile that contained several photographs of
defendant and had the user name "Price_OneofKind."      There was no
reference to defendant's full name on the profile page and, while
the detective testified that the profile page listed the
purported user's age and hometown, she did not testify as to
whether any of this information matched defendant's pedigree
information.   Nor were any of the pages containing this pedigree
information introduced to connect defendant to the specific user
of this website.
          The photograph at issue was posted to the internet
profile page several months before the robbery.      The detective
testified that the individual in the photograph holding the
handgun "look[ed] like" defendant.      She explained that she had
printed the photograph from the internet website, and she
asserted that the printout was a true and accurate depiction of
the photograph she observed on the website.      However, the
detective admitted that she did not know who took the photograph,
when it was taken, where it was taken, or under what
circumstances it was taken.    Nor did she know whether the
photograph had been altered or was a genuine depiction of that
which it appeared to depict.    Nevertheless, after the photograph
was admitted into evidence over defendant's objection, the


                                - 4 -
                                 - 5 -                        No. 58

detective identified defendant as the individual in the picture.
          During summations, the People urged the jury to
conclude that the photograph was taken from an internet profile
page belonging to defendant, and they emphasized that the victim
"recognized" the gun depicted in the photograph as the one held
by the gunman.   Following deliberations, the jury found defendant
guilty of both counts of robbery.
          Upon defendant's appeal, the Appellate Division
affirmed the judgment of conviction, holding that "the People
laid a proper foundation for admission of the photograph, it was
relevant to the issue of the defendant's identity as the gunman,
and its probative value outweighed any prejudicial effect" (127
AD3d 995, 996 [2d Dept 2015]).    A Judge of this Court granted
defendant leave to appeal (25 NY3d 1206 [2015]).
                                  II.
          Defendant argues that the trial court erred by
admitting into evidence the photograph obtained from the internet
because the People failed to sufficiently authenticate it.
Defendant contends that the People's authentication proffer was
lacking because the victim could not identify the firearm in the
image and because the People presented no evidence that the
photograph was genuine and had not been altered.    The People
argue in response that the photograph was sufficiently
authenticated by the detective's testimony that the printout was
a fair and accurate representation of the image shown on the


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                                - 6 -                         No. 58

internet profile page, combined with the indicia suggesting that
the profile belonged to defendant.
           "In order for a piece of evidence to be of probative
value, there must be proof that it is what its proponent says it
is.   The requirement of authentication is thus a condition
precedent to admitting evidence" (United States v Sliker, 751 F2d
477, 497 [2d Cir 1984]; see 1-4 New York Evidentiary Foundations
§ A [2016]).   "Accuracy or authenticity is established by proof
that the offered evidence is genuine and that there has been no
tampering with it" (People v McGee, 49 NY2d 48, 59 [1979]).    We
have explained that "[t]he foundation necessary to establish
[authenticity] may differ according to the nature of the evidence
sought to be admitted" (id.).   For example, mere identification
by one familiar with an item of evidence may suffice where the
item is distinct or unique (see People v Julian, 41 NY2d 340, 343
[1977]; see e.g. People v Flanigan, 174 NY 356, 368 [1903]).
Where a party seeks to admit tape recordings, authenticity may
often be established by testimony from a participant in the
conversation attesting to the fact that the recording is a fair
and accurate reproduction of the conversation (see People v Ely,
68 NY2d 520, 527 [1986]; People v Arena, 48 NY2d 944, 945
[1979]).   In addition, testimony establishing a chain of custody
may suffice to demonstrate authenticity in other circumstances
(see e.g. Julian, 41 NY2d at 343; Amaro v City of New York, 40
NY2d 30, 35 [1976]; People v Connelly, 35 NY2d 171, 174 [1974];


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                               - 7 -                          No. 58

see also People v Patterson, 93 NY2d 80, 84 [1999]; Ely, 68 NY2d
at 528).   Ultimately, "the availability of these recognized means
of authentication should ordinarily allow for and promote the
general, fair and proper use of new technologies, which can be
pertinent truth-yielding forms of evidence" (Patterson, 93 NY2d
at 84).
           With respect to photographs, we have long held that the
proper foundation should be established through testimony that
the photograph "accurately represent[s] the subject matter
depicted" (People v Byrnes, 33 NY2d 343, 347 [1974]; see
Patterson, 93 NY2d at 84; 1-4 New York Evidentiary Foundations §
I [2016]; Prince, Richardson on Evidence § 4-212 [2008]; Fisch on
New York Evidence § 142, at 82-83 [2d ed 1977]).   "Rarely is it
required that the identity and accuracy of a photograph be proved
by the photographer.   Rather, since the ultimate object of the
authentication requirement is to insure the accuracy of the
photograph sought to be admitted into evidence, any person having
the requisite knowledge of the facts may verify," or an expert
may testify that the photograph has not been altered (Byrnes, 33
NY2d at 347; see Patterson, 93 NY2d at 84).
           The People failed to authenticate the photograph
through any of these methods at trial, as the victim was unable
to identify the weapon as that which was used in the robbery,2

     2
        The concurrence appears to confuse authentication with
relevance. To be sure, Appellate Division Departments have found
in-court testimony from witnesses who claim that they have

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                               - 8 -                         No. 58

and no other witnesses testified that the photograph was a fair
and accurate representation of the scene depicted (see People v
Marra, 21 NY3d 979, 981 [2013], affg 96 AD3d 1623, 1625-1626 [4th
Dept 2012]; Byrnes, 33 NY2d at 347; Alberti v New York, Lake Erie
& W. R.R. Co., 118 NY 77, 88 [1889]; see also Zegarelli v Hughes,
3 NY3d 64, 69 [2004]) or that it was unaltered.   Indeed, the
People do not claim, on appeal, to have satisfied the traditional
authentication requirements.
          Rather, the People argue that authentication of the
photograph by a witness with personal knowledge of the scene
depicted or through expert testimony is unnecessary in cases such
as this, where the photograph at issue is obtained from an


observed a defendant possessing a weapon similar to that which is
alleged to have been used in a crime to be relevant. In such
cases, however, there is no question as to the authenticity of a
witness's testimony (see e.g. People v Gonzalez, 88 AD3d 480, 480
[1st Dept 2011], lv denied 18 NY3d 924 [2012]; People v Rivera,
281 AD2d 702, 703 [3d Dept 2001], lv denied 96 NY2d 805 [2001];
People v Brown, 266 AD2d 863, 863 [4th Dept 1999], lv denied 94
NY2d 860 [1999]). Contrary to the concurrence's analysis, the
People here did not seek merely to "establish that the printout
was a digital image from defendant's website" (concurring op, at
5). Rather, the People sought to prove that defendant actually
possessed the firearm used in the robbery. In other words, the
photograph here was proffered only for the truth of its contents
and, therefore, was relevant only insofar as it is a fair and
accurate representation of that which it purports to depict.
While fabricated or altered photographs found on a defendant's
internet profile page may, in some other cases, be relevant
regardless of the photograph's authenticity -- for example, if
offered to show a defendant's state of mind, familiarity with
another person, or knowledge of something relevant to the case --
the People proffered no such purpose at trial for the photograph
at issue here.


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                                - 9 -                         No. 58

internet profile page that the People claim is controlled by
defendant.    To that end, the People point out that courts of
several other jurisdictions have adopted a two-pronged analysis
for authenticating evidence obtained from internet profiles or
social media accounts.    This approach allows for admission of the
proffered evidence upon proof that the printout of the web page
is an accurate depiction thereof, and that the website is
attributable to and controlled by a certain person, often the
defendant (see e.g. State v Jones, 318 P3d 1020, *5-*6 [Kan Ct
App 2014]; Smoot v State, 316 Ga App 102, 109-111, 729 SE2d 416,
425-426 [Ga Ct App 2012]; United States v Bansal, 663 F3d 634,
667 [3d Cir 2011]; Tienda v State, 358 SW3d 633, 642 [Tex Crim
App 2012]).    The courts that have adopted this approach have
generally held that circumstantial evidence, such as identifying
information and pictures, may be used to authenticate a profile
page or social media account as belonging to the defendant.
Relying on these out-of-state cases, the People contend that the
detective's testimony identifying and describing the profile page
she found on BlackPlanet.com, combined with her testimony that
the printout was an accurate representation of the photograph
displayed thereon, provided sufficient authentication evidence to
allow admission of the photograph.      We disagree.
          Assuming without deciding that a photograph may be
authenticated through the method proposed by the People, the
evidence presented here of defendant's connection to the website


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                             - 10 -                         No. 58

or the particular profile was exceedingly sparse.3   For example,
notably absent was any evidence regarding whether defendant was
known to use an account on the website in question, whether he
had ever communicated with anyone through the account, or whether
the account could be traced to electronic devices owned by him.
Nor did the People proffer any evidence indicating whether the



     3
        We disagree with the assertion of our concurring
colleagues that we should not decide this appeal without
conclusively adopting a general and comprehensive test for
authentication to be applied, not only in this case, but in all
cases involving authentication of photographs found on a social
network web page. Because we conclude that the proffer was
insufficient under any potential standard for authentication --
whether it be the traditional method of authenticating a
photograph or the standard offered by the People (or some
variation thereof) -- we need not go any further than deciding
the case presently before us (cf. Matter of Solla v Berlin, 24
NY3d 1192, 1195 [2015] [even assuming, without deciding, adoption
of petitioner's proposed definition, petitioner would not prevail
on appeal], rearg denied 25 NY3d 1063 [2015]; People v Basile, 25
NY3d 1111, 1113 [2015] [holding that the Court need not reach the
question presented by defendant on appeal "because, even assuming
that defendant is correct, he would not be entitled to relief on
this record"]). "We reject the premise that we must now declare
that one test would be appropriate for all situations, or that
the proffered tests are the only options that should be
considered" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1,
27 [2016]). In our view, it is more prudent to proceed with
caution in a new and unsettled area of law such as this. We
prefer to allow the law to develop with input from the courts
below and with a better understanding of the numerous factual
variations that will undoubtedly be presented to the trial
courts. Because we necessarily decide each case based on the
facts presented therein, it would be premature to decide whether
the People's proffer would have been sufficient had the
prosecution, hypothetically, established that the website was
controlled by defendant. At this time, it is sufficient and
appropriate for us to hold that, based on the proffer actually
made, the photograph was not admissible.

                             - 10 -
                              - 11 -                           No. 58

account was password protected or accessible by others, whether
non-account holders could post pictures to the account, or
whether the website permitted defendant to remove pictures from
his account if he objected to what was depicted therein.    Without
suggesting that all of the foregoing information would be
required or sufficient in each case, or that different
information might not be relevant in others, we are convinced
that the authentication requirement cannot be satisfied solely by
proof that defendant's surname and picture appears on the profile
page.   Thus, even if we were to accept that the photograph could
be authenticated through proof that the website on which it was
found was attributable to defendant, the People's proffered
authentication evidence failed to actually demonstrate that
defendant was aware of -- let alone exercised dominion or control
over -- the profile page in question (see United States v Vayner,
769 F3d 125, 132-133 [2d Cir 2014]; Commonwealth v Williams, 456
Mass 857, 869 [2010]; compare Jones, 318 P3d at *6; Moore v
State, 295 Ga 709, 713, 763 SE2d 670, 674 [2014]).
                               III.
           In sum, the People failed to demonstrate that the
photograph was a fair and accurate representation of that which
it purported to depict.   Nor -- assuming adoption of the test
urged by the People (or some variation thereof) -- did the People
present sufficient evidence to establish that the website
belonged to, and was controlled by, defendant.   Thus, although


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                             - 12 -                        No. 58

the decision of whether to admit or preclude evidence generally
rests within the discretion of the trial court (see Patterson, 93
NY2d at 84), admission of the photograph here lacked a proper
foundation and, as such, constituted error as a matter of law.
Furthermore, on the facts of this case, we cannot conclude that
the error was harmless (see generally People v Crimmins, 36 NY2d
230, 242 [1975]).
          Accordingly, the order of the Appellate Division should
be reversed and a new trial ordered.




                             - 12 -
People v Chris Price
No. 58




RIVERA, J.(concurring):
          I agree with the majority that the People failed to
authenticate the computer printout and its admission was
reversible error, entitling defendant to a new trial (majority op
at 2).   The case presents a novel question as to how a party may
authenticate a printout of a digital image found on a social
media website.1    However, the majority does not adopt a test to
apply in determining that the foundational proof was
insufficient.     I write to clarify why the People's authentication
proof comes up short.
          At defendant's trial on two counts of armed robbery
(Penal Law §§ 160.15 [4]; 160.10 [1]), the People sought to admit
a printout of a digital image obtained on a website called
"BlackPlanet.com."    The People argued that the printout depicted
defendant holding the gun used in the robbery.    There is no
dispute that the printout depicts a person holding a gun and
money.   The court admitted the evidence, concluding that a proper


     1
       To avoid confusion with our prior case law on the
authentication of photographs, and to more precisely describe
that the evidence offered for admission here was a digitized
rendition posted on a social media site, I refer to the proffered
evidence as a "printout of a digital image" rather than as a
"photograph" (majority op at 1).

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                               - 2 -                         No. 58

foundation had been laid after a detective identified defendant's
face in the top half of the printout, and the victim identified
the gun in the bottom half as a gun that "looks similar to the
gun that took place in the robbery."   The Appellate Division
affirmed the judgment, specifically rejecting defendant's
argument that the People failed to adequately authenticate the
printout (People v Price, 127 AD3d 995, 996 [2d Dept 2015]).
          Before this Court, defendant renews his authentication
challenge.   Defendant and the People propose different tests for
authenticating social media evidence, each claiming their
respective test best reflects the requirements of our prior case
law and accounts for the risk of tampering associated with social
media images.   Although I do not adopt defendant's proposed test,
he is correct that the People's proof was inadequate in this
case.
          The decision whether to admit or exclude evidence "may
be disturbed by this Court only when no legal foundation has been
proffered or when an abuse of discretion as a matter of law is
demonstrated" (People v Patterson, 93 NY2d 80, 84 [1999]).   "In
determining whether a proper foundation has been laid for the
introduction of real evidence, the accuracy of the object itself
is the focus of inquiry" (People v McGee, 49 NY2d 48, 59 [1979]).
"Accuracy or authenticity is established by proof that the
offered evidence is genuine and that there has been no tampering
with it" (id.).


                               - 2 -
                               - 3 -                          No. 58

          We have long recognized that authentication is not
subject to a one-size-fits all approach but, rather, the proof
necessary to establish the reliability of the proposed evidence
"may differ according to the nature of the evidence sought to be
admitted" (id.).   Authentication may be established by direct or
circumstantial evidence, and "reasonable inferential linkages can
ordinarily supply foundational prerequisites" so long as the
"tie-in effort" is not "too tenuous and amorphous" (Patterson, 93
NY2d at 85).   In other words, the party seeking to admit evidence
may rely on a variety of proof, alone or in combination, to meet
its burden of establishing the reliability of the evidence (see
People v Ely, 68 NY2d 520, 527 [1986] ["The necessary foundation
may be provided in a number of different ways."]).   While certain
types of proof by their nature may establish authentication for
categories of evidence, previously "noted methods of
authentication are not exclusive" (Patterson, 93 NY2d at 84).    A
court's determination as to the sufficiency of proof in any
particular case is a fact-specific enterprise, which turns on the
purpose of the evidence sought to be admitted (see e.g. People v
Julian, 41 NY2d 340, 343 [1977] ["Proof of a complete chain of
custody is one accepted technique for showing the authenticity of
a fungible item of real evidence."]; People v Kinne, 71 NY2d 879,
880 [1988] [authentication certificate on a business record may
"replace[] the testimony of a live witness"]; People v Lynes, 49
NY2d 286, 293 [1980] ["substance of the conversation" may supply


                               - 3 -
                                - 4 -                         No. 58

"criteria of reliability"]).    Thus, our precedent establishes
that the test for authentication is flexible and responds to the
factual nuances of each case.
          As with other evidentiary matters, when presented with
a question of authentication, the trial court’s task is to
determine whether the party offering the evidence has made a
sufficient threshold showing of reliability so that the evidence
may be submitted to the jury (see Lynes, 49 NY2d at 293 [a judge
may leave it to the jury to decide whether the evidence
implicates defendant or some other person]; People v Dunbar
Const. Co., 215 NY 416, 422-423 [1915] [trial judge did not err
in allowing the jury to determine whether defendant was the
speaker in a telephone conversation submitted as evidence]).      It
is for the jury then to determine the weight of the evidence and
whether it implicates the defendant in the crime charged (Dunbar,
215 NY at 423 ["The question before the trial judge was whether
he would exclude the conversation altogether, or receive it and
allow the jury to say whether (defendant) was the speaker."];
Lynes, 49 NY2d at 293 ["(I)t cannot be said as a matter of law
that the Trial Judge erred in leaving it to 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 . . . the speaker was sufficiently
identified."]).
          Given the general population's mass consumption and use


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                                 - 5 -                         No. 58

of social media, "[p]redictably, social media postings are
becoming an important source of evidence" (Imwinkelreid,
Evidentiary Foundations, § 4.02 [6] [9th Ed. 2015]; see also Hon.
Paul Grimm, Authentication of Social Media Evidence, 36 Am. J.
Trial Advoc. 433 [2013]).   Courts have recognized that this
evidence presents unique challenges (see e.g. Lorraine v Markel
Am. Ins. Co., 241 FRD 534, 537 [D Md 2007]; Tienda v State, 358
SW3d 633, 639 [Tex Crim App 2012]; Parker v State, 85 A3d 682,
685-686 [Del Sup Ct 2014]).   As some commentators have noted,
"social media is often stored on remote servers, is accessed
through unique interfaces, can be dynamic and collaborative in
nature, and is uniquely susceptible to alteration and
fabrication" (Boehning & Toal, Authenticating Social Media
Evidence, 248 NYLJ 65 [2012]).    Arguably, traditional approaches
to authentication are inadequate because these new online
platforms "can complicate the application of those traditional
concepts, and we must be prepared to deal with these
complications" (Schoen, Authentication of Social Media Postings,
ABA Trial Evidence Committee [2011]).    On this appeal, we are
squarely presented with the question of how our flexible
authentication standard applies to social media images.
Therefore, we have the opportunity to resolve an evidentiary
issue of growing concern given the proliferation and




                                 - 5 -
                               - 6 -                         No. 58

ubiquitousness of social media.2
          Here, the People sought to establish that the printout
was a digital image from defendant’s web page.   The majority
concludes that the People failed to submit testimony that courts
have previously found sufficient to authenticate a photograph:
testimony from a forensic computer expert, the person who took
the picture, or a third party who either was present at the time
or who has personal knowledge about the accuracy of the image
(majority op at 7).   The majority does not decide whether the
People may only rely on this type of proof, or whether other
evidence would suffice.   In response to the People's proposed
test for the authentication of social media evidence, the
majority states that, "[a]ssuming without deciding that a
photograph may be authenticated through the method proposed by
the People, the evidence presented here . . . was exceedingly
sparse," and then concludes that, "the authentication requirement
cannot be satisfied solely by proof that defendant's surname and
picture appears on the profile page" (majority op at 9).    This
approach hints at, but does not confirm, the proof that would
satisfy the People's burden.   However, we cannot know whether the


     2
       Contrary to the majority's claim, when we decide an open
question presented on appeal we do not act in haste (majority op
at 10 n 3). Rather, we pronounce the law by which we reason an
outcome. Given the pervasive use of social media, there is
nothing premature about determining how law enforcement and
prosecutors may use evidence obtained online (see Schoen,
Authentication of Social Media Postings, ABA Trial Evidence
Committee [2011]).

                               - 6 -
                               - 7 -                        No. 58

printout of the digital image was authenticated without knowing
how to measure the adequacy of the People's proof (see Stop the
Beach Renourishment, Inc. v Florida Dep't of Envtl. Prot., 560 US
702, 716 [2010] [rejecting the concurrence's insistence that
"this case does not require those questions to be addressed"
because "(o)ne cannot know whether a takings claim is invalid
without knowing what standard it has failed to meet"]).3
          Turning to the merits, whether the People's evidence
was sufficient to authenticate the social media digital image
depends on the purpose for which it was offered.   The People
argued that the printout was an accurate representation of an
image from defendant's web page, and that it depicted him with
the gun used in the crime.   Essentially, the People sought to
establish the reliability of the image by connecting defendant to
a web page that belonged to him.


     3
       In some contexts we may resolve a matter by "assuming
without deciding" a legal fact or applicable standard (see e.g.
East Ramapo Cent. Sch. Dist. v King, 29 NY3d 938, 939-940 [2017];
People v Fisher, 28 NY3d 717, 725 [2017]; People v Augustine, 21
NY3d 949, 951 [2013]; People v Cornelius, 20 NY3d 1089, 1091
[2013]; Quilloin v Walcott, 434 US 246, 256 [1978]; Smith v
Spisak, 558 US 139, 156 [2010]). That approach is appropriate
where the Court assumes a threshold fact necessary to the
resolution of the issue on appeal or decides between two or more
well-established rules (see Stop the Beach, 560 US at 718). It
is one thing to hold that, for example, assuming there was error,
it was harmless, but it is quite another to assume a test
applies, and hold that it has not been satisfied. In the former
case, what the Court assumes is, in actuality, immaterial to the
outcome, but in the latter case -- as illustrated by defendant's
appeal -- what the court assumes is precisely necessary to
resolving the issue presented.

                               - 7 -
                                - 8 -                          No. 58

           The People's proof had to first overcome two levels of
authentication.   Given the People's purpose for seeking admission
of the image, I would hold that the People had to establish that:
(1) the print out was an accurate representation of the web page;
and (2) that the page was defendant's, meaning he had dominion
and control over the page, allowing him to post on it.   It is
undisputed that the People proved, through the detective’s
testimony, that the printout was an accurate representation of
the digital image she viewed on the BlackPlanet.com website.
Crucially, however, the People failed to establish that this was
defendant's web page, by direct or circumstantial evidence, or
with proof establishing "reasonable inferential linkages [that]
ordinarily supply foundational prerequisites" (Patterson, 93 NY2d
at 85).   Like in Patterson, the "tie-in effort" between the
testimony relied on by the People here, and the purpose for which
the printout was submitted, was "too tenuous and amorphous"
(id.).    In other words, the People did not submit proof by which
a reasonable jury could conclude that the printout was an
accurate representation of defendant's profile page.   Although
the majority does not expressly adopt this requirement, I agree
with my colleagues' conclusion that "[t]he authentication
requirement cannot be satisfied solely by proof that defendant's
surname and picture appears on the profile page" (majority op at
8).
           The People had knowledge of personal information posted


                                - 8 -
                               - 9 -                           No. 58

on the web page which might have established the necessary link
to defendant, but the People did not present that evidence as
part of the proffer.   Other evidence arguably addresses the
authentication of the web page and the depiction therein, such as
proof that the defendant posted or adopted the photograph, or
knew of the photograph and allowed it to remain on the profile
page without objection.   However, given the deficiency of the
proof actually submitted, I agree with the majority (majority op
at 10, n 3), we need not consider whether proof that the web page
belonged to defendant could also establish that the image
depicted was genuine (McGee, 49 NY2d at 59]).4   In other words,


     4
       Given the lack of adequate evidence connecting defendant
to the web page, the Court has no occasion to address the
sufficiency of the victim's identification of the gun.
Nevertheless, the majority concludes the People failed to
authenticate the printout, in part, because the victim "could not
identify the gun in the photograph as the one held by the robber"
(majority op at 3). Yet, only in unusual circumstances will a
victim be able to testify with confidence that the proffered
evidence matches exactly the weapon used during the commission of
the crime. More likely, a victim will be able to testify only
that the evidence looked "like" the weapon used, as the victim
did here. Notably, the Appellate Division has decided that this
type of testimony is enough to permit admission (People v
Gonzalez, 88 AD3d 480, 480 [1st Dept 2011] [evidence of
defendant's possession of a knife that "resembled the knife used
in the robbery" one week after the robbery was "clearly
relevant"]; People v Rivera, 281 AD2d 702, 703 [3d Dept 2001]
["evidence of defendant's prior and subsequent possession of a
firearm resembling the one used in the present crimes was
admissible for the purpose of identifying defendant as the
perpetrator"]; People v Brown, 266 AD2d 863, 863 [4th Dept 1999]
[evidence that defendant possessed a handgun similar to the gun
used in the crime four days before "was admissible to establish
defendant's identity"]; People v Jackson, 237 AD2d 620, 620 [2d
Dept 1997] ["trial court properly admitted into evidence

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                              - 10 -                        No. 58

since the People did not link defendant to the web page where the
image was found, there is no need to consider on this appeal what
must be shown to satisfy McGee’s requirement that "there has been
no tampering with" the proffered evidence (id.).   That question
is left for a future case.
          This approach respects the role of the judge and jury.
If the People satisfy their burden then the court may exercise
its discretion to admit the evidence, assuming it otherwise meets
the rules for admission (i.e., relevance, whether the
probativeness of the evidence outweighs any potential unfair
prejudice).   Once the People have met these threshold
requirements, that is, once a printout from a social media web
page is authenticated, it is for the jurors to decide whether
they find the evidence persuasive on an issue in the case (see


testimony that five days after the crime, the defendant possessed
a weapon resembling the weapon used in the crime" as proof of
defendant's identity]). As this Court has stated, "certainty
[is] not necessary" to establish admissibility (People v Dunbar,
215 NY 416, 423 [1915]). While the majority observes that in
some of these, the courts held that the evidence was "relevant,"
and did not refer to "authentication" (majority op at 8 n 2), the
testimony would only be relevant if the weapon were the same as
the weapon used during the commission of the crime because in
those cases the prior possession was admitted to show identity
just as in defendant's case. These courts certainly must have
determined a weapon to be the same as that used during the crime
based on testimony that the weapon was "similar." In any event,
whether the gun was properly identified by the victim in this
appeal is rendered academic because the People did not connect
defendant to the web page. Prudence requires we leave the issue
until properly presented in another case.



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                                  - 11 -                            No. 58

Lynes, 49 NY2d at 293 [1980]; Dunbar Const. Co., 215 NY at 422-
423; Evidence in New York State and Federal Courts § 9:7 [5A NY
Prac Series] ["the judge alone determines the specimen's
authenticity, subject to the jury's right to reject the judge's
finding of genuineness"]; CJI2d [NY] Instructions of General
Applicability--Role of Court and Jury).
            As is the usual case, the defendant is free to
challenge the reliability of the evidence, and suggest other
inferences and interpretations of the People’s proof.          A
defendant may submit evidence on rebuttal that the photo is
unreliable, for example, with proof from the person who altered
the photo, proof that the defendant disavowed the photo on the
web page, or a copy of the original, unaltered photo.          It is then
for the jury to weigh the evidence and ultimately decide.
*   *   *     *   *   *   *   *     *      *   *   *   *   *    *   *   *
Order reversed and a new trial ordered. Opinion by Judge Stein.
Chief Judge DiFiore and Judges Fahey and Wilson concur. Judge
Rivera concurs in result in an opinion in which Judge Garcia
concurs. Judge Feinman took no part.

Decided June 27, 2017




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