| People v Patterson |
| 2015 NY Slip Op 03788 [128 AD3d 424] |
| May 5, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Robert Patterson, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel),for appellant.
Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel),for respondent.
Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered April 4,2012, as amended May 24, 2012, convicting defendant, after a jury trial, of robbery in thesecond degree and burglary in the second degree, and judgments (same court and Justice)rendered April 4, 2012, as amended May 24, 2012 and November 8, 2012, convictingdefendant, upon his pleas of guilty, of robbery in the first and third degrees andattempted robbery in the first degree, and sentencing him, and sentencing him, as asecond violent felony offender, to an aggregate term of 20 years on all convictions,unanimously affirmed.
Authenticated records showing that the person who purchased a particular prepaidcell phone, which was linked to the crime, supplied pedigree information linked todefendant were properly admitted as circumstantial evidence of defendant's identity asthe purchaser of the phone. In the context of the case, the pedigree information did notconstitute assertions of fact, but circumstantial evidence that the declarant was, in alllikelihood, defendant (see People v Boswell, 167 AD2d 928 [4th Dept 1990],lv denied 77 NY2d 876 [1991], lv dismissed 81 NY2d 785 [1993]).Rather than being factual, the pedigree information was analogous to a fingerprint left ona document, tending to show the true identity of its author (see People v Johnson,237 AD2d 971 [4th Dept 1997], lv denied 89 NY2d 1095 [1997]). Although thepurchaser of the phone was not under a business duty to provide the pedigreeinformation, that requirement of the business records exception to the hearsay rule didnot apply, because the initial declaration was independently admissible (see Matter ofLeon RR, 48 NY2d 117, 122 [1979]; Kelly v Wasserman, 5 NY2d 425[1959]). The possibility that the phone could have been purchased by an unknown personwho had somehow acquired defendant's pedigree information goes to weight, notadmissibility. We have considered and rejected defendant's remaining argumentsconcerning the court's receipt of this evidence.
Defendant made a valid waiver of his right to appeal with regard to his convictionsby [*2]plea of guilty. Regardless of whether defendantvalidly waived his right to appeal in connection with his guilty pleas, we perceive nobasis for reducing the sentences for any of defendant's convictions. Concur—Tom,J.P., Andrias, Saxe, DeGrasse and Kapnick, JJ.