Opinion
November 10, 1986
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Callahan, J.P., Doerr, Boomer, Lawton and Schnepp, JJ.
Judgment unanimously reversed on the law, and new trial granted. Memorandum: Defendant appeals from his conviction after a jury trial of two counts of rape in the first degree and one count of sodomy in the first degree. At the hospital following the commission of the crime, claimant gave a history which included a detailed description of the events leading up to the rape and sodomy. Further, in this history the claimant identified by name her assailants. This hospital record was introduced into evidence over objection by defense counsel. On appeal defendant contends that this record was inadmissible hearsay, and improperly bolstered Ms. Scott's testimony, and therefore reversible error. We agree.
Hospital records generally are admissible under the business record exception to the hearsay rule (CPLR 4518). However, this admissibility is limited to the extent the entries relate to the diagnosis and treatment of the patient (People v Davis, 95 A.D.2d 837). The history portion of the hospital record as it relates to acts and occurrences not relevant to diagnosis or treatment of the patient are inadmissible (Williams v Alexander, 309 N.Y. 283, 287; Richardson, Evidence § 302, at 277 [Prince 10th ed 1973]). This hospital record is not admissible under the hearsay exception allowing testimony of a prompt complaint by the victim of the injury, as this report is not merely confined to the victim's timely complaint, but rather provides a detailed report of the incident (People v Vicaretti, 54 A.D.2d 236, 244). The history portion of the hospital record was therefore inadmissible and improperly bolstered the complainant's testimony by showing that the witness had made previous similar statements (see, People v Wooden, 66 A.D.2d 1004, 1005). This error cannot be deemed harmless as the sole direct evidence implicating defendant was the testimony of the complainant (see, People v Crimmins, 36 N.Y.2d 230, 241; Gunn v City of New York, 104 A.D.2d 848).
We further note that the trial court erred in its charge as to burden of proof by employing the "balancing of the scales" test. This language has often been held to be inappropriate as it can lead a jury to believe that something less than guilt beyond a reasonable doubt is sufficient for conviction (People v Wade, 99 A.D.2d 474, 475; People v Thompson, 97 A.D.2d 554, 555; People v Melville, 90 A.D.2d 488, 489; People v Fox, 72 A.D.2d 146). Its continued use is strongly disapproved.