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DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED.

The First Department, reversing the defendants’ fraud-related convictions, determined (1) the defense did not “open the door” to the admission of hearsay evidence that a nontestifying codefendant (Solomon) pled guilty in a related matter, and (2) the criteria for the business records exception to the hearsay rule were not met:

… [T]he inquiry whether a defendant opened the door to the admission of otherwise inadmissible evidence “is twofold — whether and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression” … .  * * *

A party seeking to introduce evidence under the exception must demonstrate that “each participant in the chain producing the record, from the initial declarant to the final entrant, [was] acting within the course of regular business conduct” when the record was made … . We find that although bank personnel were acting under a business duty when the record was created, the record fails to demonstrate that Solomon was acting under such a duty when he supplied the information at issue. People v Schlesinger Elec. Contrs., Inc., 2016 NY Slip Op 06742, 1st Dept 10-13-16

 

CRIMINAL LAW (DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/EVIDENCE (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/HEARSAY (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/OPEN THE DOOR (CRIMINAL LAW, DEFENSE DID NOT OPEN THE DOOR TO HEARSAY EVIDENCE OF A CODEFENDANT’S CONVICTION; CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (CRIMINAL LAW, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE NOT MET; CONVICTIONS REVERSED)

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EXPERT EVIDENCE ON THE CROSS-RACE EFFECT ON THE ABILITY TO IDENTIFY THE PERPETRATOR SHOULD HAVE BEEN ALLOWED, THE REQUEST TO GIVE THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED, THE NEW (2017) RULING ON CROSS-RACIAL IDENTIFICATION SHOULD BE RETROACTIVELY APPLIED TO CASES ON DIRECT APPEAL WHEN THE RULING WAS MADE (FIRST DEPT).
PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER (UNDER LABOR LAW 240 (1)) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT).

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