| People v Batjer |
| 2010 NY Slip Op 06825 [77 AD3d 1279] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Scott Batjer,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered July 27,2007. The judgment convicted defendant, upon a nonjury verdict, of body stealing (eight counts),opening graves (eight counts), unlawful dissection of a human body (eight counts) and scheme todefraud in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of, interalia, eight counts each of body stealing (Public Health Law § 4216), opening graves (§4218) and unlawful dissection of a human body (§ 4210-a). Defendant failed to preserve for ourreview his contention that the conviction is not supported by legally sufficient evidence inasmuch as hefailed to move for a trial order of dismissal at the close of the People's case (see People vGray, 86 NY2d 10, 19 [1995]). In any event, we reject that contention (see generally Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of the elements ofthe crimes in this nonjury trial (see e.g. Peoplev Mosley, 59 AD3d 961, 962 [2009]), we conclude that the verdict is not against the weightof the evidence (see generally Bleakley, 69 NY2d at 495).
Contrary to the contention of defendant, he was not denied effective assistance of counsel (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). In light of our determination that theevidence is legally sufficient to support the conviction, defendant thus has "failed to demonstrate that his'contention [with respect to the legal sufficiency of the evidence] would be meritorious upon [our]review' " (People v Martinez, 73 AD3d1432, 1433 [2010]). We have considered defendant's remaining contentions concerning thealleged shortcomings of defense counsel and conclude that they are without merit.
Defendant further contends that the indictment should be dismissed pursuant to the "good faith"exception set forth in Public Health Law § 4306 (3). We reject that contention. Section 4306 (3)provides that "[a] person who acts in good faith in accord with the terms of [article 43] or withthe anatomical gift laws of another state is not liable for damages in any civil action or subject toprosecution in any criminal proceeding for his [or her] act" (emphasis added). Here, [*2]defendant was prosecuted under article 42 of the Public Health Law,governing the treatment of cadavers, not article 43, which concerns anatomical gifts. In any event, therecord does not support a determination that defendant acted in good faith.
We reject the further contention of defendant that County Court erred in allowing the People tointroduce in its direct case statements made by defendant to an investigator for the Kings CountyDistrict Attorney's Office pursuant to a proffer agreement. The agreement expressly provides only that"the [Kings County District Attorney's] Office" would not use any information provided by defendant inits case-in-chief in any criminal proceeding. It does not provide that defendant's statements would notbe used to prosecute him in another jurisdiction. Contrary to the contention of defendant, the fact that aKings County investigator sought the aid of the Rochester Police Department in obtaining a searchwarrant for the Rochester office of BioMedical Tissue Services (BTS), a human tissue procurementagency based in New Jersey, does not establish that Monroe County and Kings County were acting inconcert such that the former could be bound by the promises of the latter.
We agree with defendant, however, that the court erred in admitting in evidence certain records ofBTS inasmuch as the People failed to establish that the records fall within the business recordsexception to the hearsay rule (see CPLR 4518 [a]; CPL 60.10). An employee of RegenerationTechnologies, Inc. (RTI), a human tissue processing company that contracts with BTS, testified thatRTI relied on the records submitted by BTS, which were incorporated into RTI's records following areconciliation process. The employee also testified that RTI was required to maintain those records,that the records were made in the regular course of RTI's business, and that RTI maintained thoserecords in the regular course of business. However, the RTI employee was not familiar with therecord-keeping procedures of BTS and thus was unable to testify whether BTS made the recordscontemporaneously with the events being recorded, whether the records in question were made in theregular course of the business of BTS, or whether it was in fact the regular course of the business ofBTS to make such records (see People vBurdick, 72 AD3d 1399, 1401-1402 [2010]; cf. People v Brown, 13 NY3d 332, 341 [2009]). The two witnessesfrom BTS likewise failed to establish the requisite foundation for the admissibility of the documents inquestion as business records (see Burdick, 72 AD3d at 1401-1402). Nevertheless, weconclude that the court's error in admitting those records is harmless because the proof of defendant'sguilt is overwhelming, and there is no significant probability that defendant would have been acquitted ifnot for the error (see People v Edmonds, 251 AD2d 197, 198-199 [1998], lv denied92 NY2d 924 [1998]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).Present—Scudder, P.J., Martoche, Peradotto, Green and Gorski, JJ.