Description: Albany, New York, criminal defense lawyer represented the Defendant charged with assault with a dangerous weapon.

The case revolves around the issue of when a non-eyewitness can testify to a jury that the defendant is the person depicted in a photo or video. The incident in question occurred on June 10, 2015, when a man was captured on police cameras in Syracuse firing three shots into a van. The defendant, Farod Mosley, was indicted for the shooting in September 2015, but the indictment was dismissed as legally insufficient. In July 2016, an assistant district attorney showed the video of the shooting to Detective Steven Kilburn, who identified Mosley as the shooter in the video. This identification led to a new indictment against Mosley.

The trial took place in February 2018, with the key issue being the identification of the shooter in the video. The prosecution relied on Kilburn to provide lay, non-eyewitness identification testimony that he believed Mosley was the shooter in the video. The jury ultimately convicted Mosley of two counts of criminal possession of a weapon in the second degree and reckless endangerment in the first degree. Mosley argued that the trial court abused its discretion in admitting Kilburn's testimony.

The Appellate Division rejected Mosley's contention, holding that the People demonstrated Kilburn was more likely than the jury to correctly identify Mosley in the video. However, the Court of Appeals reversed the decision, holding that the People failed to establish that Kilburn's testimony would aid the jury in making an independent assessment regarding whether the person in the video was Mosley. The court ruled that such testimony may be admitted where the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment. In this case, there was no showing that the proffered witness was sufficiently familiar with the defendant to render his testimony helpful, or that the jury faced an obstacle to making the identification that the witness's testimony would have overcome.

Outcome: Reversed.

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