| People v Agudelo |
| 2012 NY Slip Op 05072 [96 AD3d 611] |
| June 21, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Agudelo, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered October 15, 2010,convicting defendant, after a jury trial, of grand larceny in the third degree, and sentencing him,as a second felony offender, to a term of 2½ to 5 years, unanimously affirmed.
The victim's testimony was sufficient to authenticate the content of a set of cell phone instantmessages exchanged between her and defendant. The detective testified that he viewed themessages on the victim's phone and thereafter read the printout of the messages, which the victimhad cut and pasted into a single document. This printout was introduced in evidence after thevictim testified that it accurately represented the exchange of messages she received on her cellphone. She testified that she knew the messages were from defendant because his name appearedon her phone when she received the instant messages.
One of the numerous ways to authenticate a recorded conversation is through the"[t]estimony of a participant in the conversation that it is a complete and accurate reproduction ofthe conversation and has not been altered" (People v Ely, 68 NY2d 520, 527 [1986]). Thecredibility of the authenticating witness and any motive she may have had to alter the evidencego to the weight to be accorded this evidence, rather than its admissibility (see Hansen vCoca-Cola Bottling Co. of N.Y., 78 AD2d 848 [1980]).
Relying on People vClevenstine (68 AD3d 1448 [2009]), defendant argues that authentication requirestestimony from the Internet service provider about the source of the messages. Yet,Clevenstine does not mandate this, nor did the case address the issue here, which is theaccuracy of a copy-and-paste compilation of an electronic exchange. Rather, inClevenstine, the identity of the sender was challenged and the provider's testimony wascritical to that issue (id. at 1450-1451).
Other jurisdictions that have directly dealt with the issue of the admissibility of a transcript,or a copy-and-paste document of a text message conversation, have determined that authenticitycan be shown through the testimony of a participant to the conversation that the document is afair and accurate representation of the conversation (see e.g. United States v Gagliardi,506 F3d 140 [2d Cir 2007]; United States v Tank, 200 F3d 627 [9th Cir 2000] [aparticipant to the conversation testified that the print-out of the electronic communication was anaccurate representation of the exchange and had not been altered in any significant manner];[*2]State v Roseberry, 197 Ohio App 3d 256, 2011 Ohio5921, 967 NE2d 233 [Ohio Ct App 2011] [a handwritten transcript of text messages was properlyauthenticated through testimony from the recipient of the messages, who was also the creator ofthe transcript]; Jackson v State, 2009 Ark App 466, 320 SW3d 13 [2009] [testimonyfrom a participant to the conversation was sufficient]). The testimony of a "witness withknowledge that a matter is what it is claimed to be is sufficient" to satisfy the standard forauthentication (Gagliardi, 506 F3d at 151). Here, there is no dispute that the victim, whoreceived these messages on her phone and who compiled them into a single document, hadfirst-hand knowledge of their contents and was an appropriate witness to authenticate thecompilation. Moreover, the victim's testimony was corroborated by a detective who had seen themessages on the victim's phone. Any issues relating to the detective's credibility in this regardwere likewise matters for the jury to consider. Concur—Mazzarelli, J.P., Friedman,Catterson, Richter and Manzanet-Daniels, JJ.