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ALTHOUGH THE ERRORS WERE DEEMED HARMLESS, A POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO AND POLICE OFFICERS SHOULD NOT HAVE BEEN ALLOWED TO PROVIDE HEARSAY EVIDENCE AS MOLINEUX “BACKGROUND INFORMATION” (FOURTH DEPT).

The Fourth Department determined it was error to allow a police officer to identify the defendant in a surveillance video, and it was error to allow police officers to testify about what they learned from others (hearsay) about defendant’s involvement in the shooting. Although the errors were deemed harmless because of the overwhelming evidence, these two rulings are significant. The court noted there is no Molineux exception for hearsay for so-called background information:

​“A lay witness may give an opinion concerning the identity of a person depicted in a surveillance if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the

than is the jury” … . Here, “there was no basis for concluding that the [officer] was more likely than the jury to correctly determine whether . . . defendant was depicted in the video” … .  The officer was not familiar with defendant, and there was no evidence showing that defendant had changed his appearance before trial … .

… [T]he court erred in permitting the People to elicit testimony from police officers regarding what they learned from others about defendant’s involvement in the shooting. The challenged testimony was hearsay that was not admissible under any cognizable exception to the hearsay rule. The People essentially argue that this testimony was admissible under People v Molineux (168 NY 264 [1901]) to complete the narrative with background information. We reject that argument and reiterate that “there is no Molineux exception to the rule against hearsay” … . There is also no general exception to the hearsay rule for testimony relating to background conduct, information, or explanation of a subject matter or event … . People v Harlow, 2021 NY Slip Op 03933, Fourth Dept 6-17-21

 

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WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD... IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW...