Commercial Litigation and Arbitration

Instant Message Authenticated by Proof of Person’s Screen Name and Reply Letter Doctrine, Plus No Evidence Anyone Had Motive or Opportunity to Impersonate — Voicemail Authenticated by Witness Who Recognizes Voice

People v. Pierre, 41 A.D.3d 289,; 838 N.Y.S.2d 546 (1st Dept.), appeal denied, 9 NY3d 880, 874 NE2d 759, 842 NYS2d 792 (2007):

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered May 12, 2005, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.


The court properly received, as an admission, an Internet instant message in which defendant told  [***4] the victim's cousin that he did not want the victim's baby. Although the witness did not save or print the message, and there was no Internet service provider evidence or other technical evidence in this regard, the instant message was properly authenticated, through circumstantial evidence, as emanating from defendant (see United States v Siddiqui, 235 F3d 1318, 1322-23 [11th Cir 2000], cert denied 533 US 940, 121 S Ct 2573, 150 L Ed 2d 737 [2001]; cf. People v Lynes, 49 NY2d 286, 291-293, 401 NE2d 405, 425 NYS2d 295 [1980]; People v Hamilton, 3 AD3d 405, 771 NYS2d 104 [2004], mod on other grounds 4 NY3d 654, 830 NE2d 306, 797 NYS2d 408 [2005]). The accomplice [**549]  witness, who was defendant's close friend, testified to defendant's screen name. The cousin testified that she sent an instant message to that same screen name, and received a reply, the content of which made no sense unless it was sent by defendant. Furthermore, there was no evidence that anyone had a motive, or opportunity, to impersonate defendant by using his screen name.

Defendant did not preserve his challenges to the authentication of another instant message, and to a message left by the defendant on the victim's phone, each of which threatened to harm the victim in the event the victim revealed her pregnancy to defendant's  [***5] family, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the second instant message was sufficiently authenticated [*292]  by the same type of circumstantial evidence as the first instant message, and that the phone message was sufficiently authenticated by testimony that the witness who heard the message recognized defendant's voice (see People v Lynes, 49 NY2d at 291).

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