## Facts

- A juvenile-delinquency petition charged Jayshawn B. with petit larceny and fifth-degree criminal possession of stolen property based on an alleged shoplifting incident at an American Apparel store.
- The store’s asset-protection investigator, Jude Bright, monitored the store from a surveillance room and watched a live camera feed during the incident.
- Bright reported observing Jayshawn B. take merchandise while Bright watched the live feed in real time.
- After the incident, the Presentment Agency contacted Bright about obtaining the surveillance recording; Bright initially indicated the tape might be located and shipped from centralized storage.
- Bright later informed the Presentment Agency that the recording had been destroyed after a “mis-communication” with storage personnel.
- A retailer representative indicated the store kept surveillance recordings for 39 days and destroyed the tape under its routine retention policy because the matter was believed to be resolving through probation rather than court action.
- Before fact-finding, Jayshawn B. moved to preclude Bright’s testimony and sought sanctions, arguing that destruction of the tape implicated the best-evidence rule and the prosecution’s Brady/Rosario duties.

## Issues

1. Whether the best-evidence rule required preclusion of Bright’s testimony about what he observed on a live surveillance feed because the surveillance recording was destroyed.
2. Whether destruction of the privately held surveillance recording supported Brady or Rosario sanctions against the Presentment Agency.

## Decision

- The court denied the motion to preclude Bright’s testimony under the best-evidence rule.
- The court held Bright could testify to what he observed while watching the live feed as contemporaneous observation of the underlying events.
- The court denied Brady and Rosario sanctions because the tape was never in the possession or control of law enforcement or the Presentment Agency and was destroyed by a private party under its routine policy.

## Legal Principles

- The best-evidence rule requires production of an original writing or recording when its contents are in dispute and are being proved; secondary evidence may be admitted only upon an adequate explanation for nonproduction and a showing of reliability.
- A witness’s testimony describing events observed contemporaneously on a live video feed is treated as direct eyewitness testimony about the events, not proof of the contents of a recording, and therefore does not trigger best-evidence exclusion solely because a recording is unavailable.
- Brady disclosure duties reach material exculpatory evidence within the possession or control of the prosecution or law enforcement; destruction of evidence solely by a private third party outside state control does not, by itself, establish a Brady violation warranting sanctions.
- Rosario obligations apply to prior statements of prosecution witnesses that are in the prosecution’s possession or control; they do not require sanctions where a privately maintained item was never possessed or controlled by the prosecution and was destroyed under routine private procedures.

## Conclusion

Family Court permitted the retailer investigator to testify about what he saw on a live surveillance feed despite the later destruction of the recording, and it declined to impose Brady or Rosario sanctions because the prosecution neither possessed nor controlled the tape, which was destroyed by a private entity under its retention policy.


In re Jayshawn B., 42 Misc. 3d 492 (Fam. Ct. N.Y. Cnty. 2013)