| People v Ramos |
| 2009 NY Slip Op 02636 [60 AD3d 1091] |
| March 31, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Roland Ramos, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Naomi K. Schneidmill of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Wong, J.),rendered December 21, 2006, convicting him of grand larceny in the fourth degree and schemeto defraud in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that the Supreme Court erred in admitting bank records of one of the complainantsbecause the People failed to lay a proper foundation for their admission as business recordspursuant to the business records exception to the hearsay rule (see CPL 470.05 [2];cf. People v Bell, 286 AD2d 443 [2001]; People v Antongiorgi, 242 AD2d 578[1997]).
However, the contention is without merit. Judicial notice may provide a basis for admittingbusiness records when the records proffered are "so patently trustworthy as to beself-authenticating" (People v Kennedy, 68 NY2d 569, 577 n 4 [1986]; see Elkaim vElkaim, 176 AD2d 116, 117 [1991]; see also Weinstein-Korn-Miller, NY Civ Prac¶ 4518.18 [5th ed]). The defendant did not dispute the authenticity or the accuracy of thebank records, and we see no reason to view them as other than reliable and trustworthy (seeElkaim v Elkaim, 176 AD2d at 117). Accordingly, the records were properly admitted(see Manzo v Gross, 19 AD3d 379 [2005]; Elkaim v Elkaim, 176 AD2d at 117).[*2]
In view of our determination, we need not reach thedefendant's remaining contention. Mastro, J.P., Fisher and Miller, JJ., concur.
Carni, J. (dissenting and voting to reverse the judgment and order a new trial, with thefollowing memorandum): I agree with my colleagues that the defendant preserved for appellatereview his contention that the People failed to lay a proper foundation for the admission of bankrecords pursuant to the business records exception to the hearsay rule (see CPL 470.05[2]). However, in my view, the People did not lay a proper foundation for the admission of thealleged bank records and I, therefore, dissent.
Here, there is no dispute that the alleged bank records consisted of a document received atthe District Attorney's office through a fax machine. The maker, custodian, or transmitter of thedocuments did not testify. No testimony from any bank employee or representative was offeredby the People.
The complaining witness testified that the alleged bank records shown to her were not thebank statements that she received at her home and the document did not look like the bankstatements she customarily receives at home. The witness denied any knowledge of the bank'srecord-keeping practices. She did not know when the document was made and denied anyknowledge that it was made or kept by the bank in the ordinary course of business. Moreover,the withdrawal of the funds at issue was alleged to have occurred in June 2005. The documentwas first received by the witness while she was sitting in the District Attorney's office onNovember 28, 2006—the night before her testimony. There was no testimony as to whenthe document or the entries thereupon were made.
While the People may have established that the document was authentic to the extent that itwas a document of some kind which was received on the fax machine of the District Attorney'soffice while the complaining witness was sitting in that office, this testimony by no meansestablished that the document was a bank record "made in the regular course of any business andthat it was the regular course of such business to make it, at the time of the act, transaction,occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]; see CPL60.10).
Accordingly, I respectfully dissent and would reverse the judgment and order a newtrial.