Opinion
1059 KA 14–01861
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Shariff JONES, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ) arising from his attempt to cash a counterfeit travelers check at a bank. Preliminarily, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the jury's verdict with respect to the crime of criminal possession of a forged instrument is against the weight of the evidence (see People v. Rice, 105 A.D.3d 1443, 1444, 963 N.Y.S.2d 501 [4th Dept. 2013], lv denied 21 N.Y.3d 1076, 974 N.Y.S.2d 325, 997 N.E.2d 150 [2013] ; see generally People v. Dean, 177 A.D.2d 792, 794, 576 N.Y.S.2d 892 [3d Dept. 1991], lv denied 79 N.Y.2d 855, 580 N.Y.S.2d 727, 588 N.E.2d 762 [1992] ). We nevertheless reverse the judgment and grant a new trial on counts one and three of the indictment because Supreme Court improperly admitted two categories of hearsay evidence.
First, the court "erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule ... [because they] presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business" ( People v. Manges, 67 A.D.3d 1328, 1329, 889 N.Y.S.2d 341 [4th Dept. 2009] ; see generally CPLR 4518[a] ; CPL 60.10 ). Moreover, although the printout was initially admitted only for the limited purpose of establishing "that the statement [reflected therein] was made," the court thereafter instructed the jury that the printout was permitted to show that the person with the Social Security number tendered by defendant was already a customer at the bank, thereby allowing the jury to consider the printout for the truth of the matter asserted therein. As such, the People were still obligated to establish that the " ‘entrant was under a business duty to obtain and record the statement [reflected in the printout]’ " ( People v. Patterson, 28 N.Y.3d 544, 550, 68 N.E.3d 1242 [2016], quoting Hayes v. State of New York, 50 A.D.2d 693, 693–694, 376 N.Y.S.2d 647 [3d Dept. 1975], affd 40 N.Y.2d 1044, 392 N.Y.S.2d 282, 360 N.E.2d 959 [1976] ; see Matter of Leon RR, 48 N.Y.2d 117, 122, 421 N.Y.S.2d 863, 397 N.E.2d 374 [1979] ; People v. McKinley, 72 A.D.2d 470, 476–477, 424 N.Y.S.2d 941 [4th Dept. 1980] ). The People failed to fulfill that foundational requirement here (see Manges, 67 A.D.3d at 1329, 889 N.Y.S.2d 341 ; compare Patterson, 28 N.Y.3d at 547–548, 68 N.E.3d 1242 ; People v. Ferone, 136 A.D.2d 282, 289–290, 526 N.Y.S.2d 973 [2d Dept. 1988], lv denied 72 N.Y.2d 859, 532 N.Y.S.2d 509, 528 N.E.2d 899 [1988] ).
Second, the court improperly admitted an investigator's testimony about the results of a search he ran in a credit bureau's commercial database for email addresses and a telephone number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he "is familiar with the practices of [the] company that produced the records at issue" and that he "generally relies upon such records" ( People v. Brown, 13 N.Y.3d 332, 341, 890 N.Y.S.2d 415, 918 N.E.2d 927 [2009] ; see People v. Cratsley, 86 N.Y.2d 81, 89, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ).
Contrary to the People's contention, defendant's challenges to the admissibility of the printout and database testimony were preserved for our review by his timely and specific objections at trial (see CPL 470.05[2] ; People v. Ayala, 142 A.D.2d 147, 166, 534 N.Y.S.2d 1005 [2d Dept. 1988], affd 75 N.Y.2d 422, 554 N.Y.S.2d 412, 553 N.E.2d 960 [1990], rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 986, 559 N.E.2d 680 [1990] ). Contrary to the People's further contention, the court's errors in admitting the hearsay are not harmless inasmuch as the proof of defendant's guilt, "without reference to the error[s]," is not overwhelming ( People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant's challenge to the severity of his sentence is academic in light of our determination herein.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one and three of the indictment.