| People v Cordova |
| 2015 NY Slip Op 03559 [127 AD3d 1227] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shanika Cordova, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters, JohnM. Castellano, Johnnette Traill, Anastasia Spanakos, and Adam K. Brody of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered November 9, 2011, convicting her of grand larceny in the thirddegree and falsifying business records in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The People adduced evidence that the defendant, a parking lot cashier, manuallychanged computer entries to make it appear as if certain parking lot transactions werecomplimentary, while she actually charged customers and took over $6,000 from them.Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of grand larceny in the third degree and falsifying business recordsin the first degree beyond a reasonable doubt. Moreover, upon the exercise of our factualreview power, we are satisfied that the verdict of guilt as to those crimes was not againstthe weight of the evidence (see CPL 470.15 [5]).
Nevertheless, reversal is required in light of the erroneous admission into evidence ofPeople's Exhibit 4. People's Exhibit 4 was a spreadsheet containing a comparisonbetween the defendant's manual entries and computer-generated data regarding thesubject parking transactions. In order to lay a proper foundation for the admission ofevidence under the business record exception to the hearsay rule, the proponent thereofmust establish that the subject record was "made in the regular course of any businessand that 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 People v Cratsley, 86 NY2d 81, 89 [1995]). Here, the People failed toestablish a sufficient foundation to permit the court to admit People's Exhibit 4 intoevidence under the business record exception to the hearsay rule (see People vKennedy, 68 NY2d 569, 580-581 [1986]; People v Vargas, 99 AD3d 481 [2012]; People vMcCollough, 283 AD2d 522 [2001]). Since the error was not harmless, we remit thematter for a new trial (seePeople v Wolters, 41 AD3d 518, 519 [2007]; People v Perkins, 189AD2d 830, 833 [1993]). Dillon, J.P., Dickerson, Hall and LaSalle, JJ., concur.