ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT).

The First Department, in a detailed decision describing all the evidence, determined the defendant's attempted murder conviction survived a weight of the evidence analysis, but the admission of documentary evidence was error which required reversal. The victim, Russo, had been shot in the head and could not remember who shot him. Before the grand jury, Russo testified that both the defendant (Bell) and a man named Diaz were in the apartment at the time of the shooting. At trial, however, Russo testified Diaz was not in the apartment. A detective testified Diaz had been interviewed in Florida and provided time sheets on his employer's corporate letterhead indicating he was in Florida at the time of the shooting. Those time sheets were erroneously admitted in evidence without meeting the criteria for the business records exception to the hearsay rule:

… [W]e find that the court committed reversible error in admitting Diaz's time sheets into evidence. The business records of Diaz's employer were admitted without a proper foundation, and the court failed to clearly instruct the jury that the time sheets could not be considered for the truth of their content. The jury was not told that the time sheets could not be relied upon to conclude that Diaz was not in the apartment at the time of the shootings. The business records exception to the hearsay rule is codified in CPLR 4518(a), and it also applies in criminal cases (CPL 60.10) … . For a business record to be admissible, it must be made in the regular course of business, it must be the regular course of business to make the record, and “the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” … . Business records are customarily offered through a foundation witness, such as the custodian of the records or an employee who is familiar with the record-keeping procedures of the record maker … . …

The People argue that the time sheets were admitted not for the truth of their content, but only to rebut defense counsel's extensive challenges to the adequacy of the police investigation, and that the court's limiting instruction was adequate. The limiting instruction that the court gave was imprecise and confusing. The court only instructed the jury that the time sheets were “being received in evidence as documents which [Detective Hennessey] says reflect what efforts he did and what information he received on a very particular subject matter . . . .” The court did not clearly instruct the jurors that they were not to consider the time sheets in determining whether Diaz was in the apartment at the time of the shootings. This error was not harmless. There was a substantial disputed issue about whether Diaz was the additional person in the apartment, whom [a co-defendant] identified as the shooter. This conclusion was also supported by Russo's grand jury testimony, even though Russo later repudiated it. The time sheets established an alibi for Diaz, that he was in Florida on October 25, 2007. Bell's defense was that he did not shoot Russo, and someone else in the apartment did the shooting. Allowing the time sheets into evidence was not harmless error because there was “a significant probability . . . that the jury would have acquitted the defendant had it not been for the error” … . People v Bell, 2017 NY Slip Op 05919, First Dept 8-1-17

CRIMINAL LAW (EVIDENCE, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/BUSINESS RECORDS (CRIMINAL LAW, HEARSAY, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))