Summary
reversing a case in which emergency room nurse reiterated contents of Complainant's version of the events, and finding that this testimony was inadmissible under the business records exception where the medical records were not introduced
Summary of this case from People v. TisdaleOpinion
November 15, 1991
Appeal from the Onondaga County Court, Mulroy, J.
Present — Callahan, A.P.J., Denman, Pine, Balio and Lawton, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Upon our review of the record, we conclude that defendant's conviction was based on legally sufficient evidence and was not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). We conclude, however, that reversal is mandated because the trial court improperly admitted, over objection, testimony by a hospital emergency room nurse in which she reiterated complainant's version of events surrounding the rape, which had occurred three days earlier. That evidence constituted inadmissible hearsay (see, People v. Wooden, 66 A.D.2d 1004, 1005; People v. Vicaretti, 54 A.D.2d 236). The People contend only that the evidence was admissible under the business record exception to the hearsay rule (CPLR 4518). Because the medical records were not introduced into evidence, that argument has no merit. That error cannot be deemed harmless because the People's proof directly implicating defendant consisted solely of complainant's testimony and was not overwhelming (see, People v Jackson, 124 A.D.2d 975, 976, lv denied 69 N.Y.2d 746).
Defendant's remaining contentions have not been preserved for our review (see, CPL 470.05) and we decline to consider them as a matter of discretion in the interest of justice (see, CPL 470.15).