The People v. Maurice Benston The People v. Oldalys Ortega
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 162
The People &c.,
Respondent,
v.
Oldalys Ortega,
Appellant.
----------------------No. 194
The People &c.,
Respondent,
v.
Maurice Benston,
Appellant.
Case No. 162:
Jan Hoth, for appellant.
Malancha Chanda, for respondent.
Case No. 194:
Paul Wiener, for appellant.
Robert R. Sandusky, III, for respondent.
LIPPMAN, Chief Judge:
The common issue presented by these appeals is whether
certain statements appearing in medical records were properly
admitted at trial as relevant to diagnosis and treatment under
the business records exception to the hearsay rule.
We find no
reversible error in either case and uphold the convictions.
- 1 -
- 2 -
Nos. 162 & 194
People v Benston
Defendant, who was without another place to live, had
been residing in the spare bedroom in complainant's apartment, at
her invitation.
Although their relationship was platonic at that
time, they had been involved in a romantic relationship many
years prior, beginning when complainant was 14 years old and
lasting until she was 20 or 21.1
Defendant paid complainant a
portion of the rent, but she saved the money he gave her and
planned to return it to him when he was able to move out.
On October 3, 2004, defendant informed complainant that
he had taken five dollars in quarters from her coin purse for
laundry and had replaced them with a five dollar bill.
Complainant, upset because she suspected defendant had been going
through her personal belongings, asked him to move out.
Defendant became angry and threatened to kill complainant.
He
assaulted her and choked her -- using first a scarf and then a
leather belt.
911.
Complainant was able to free herself and called
After defendant fled the apartment, complainant finished
packing his belongings and brought them to his brother's house.
By the time complainant returned to her apartment, the police had
arrived.
One of the officers discovered defendant crouched in a
corner of complainant's apartment.
Defendant was then arrested
and complainant was taken to the hospital.
1
Complainant was 36 years old at the time of the crimes.
- 2 -
- 3 -
Nos. 162 & 194
Complainant reported to medical personnel that she had
been strangled by an old boyfriend and that he had used a black
leather belt.
She was diagnosed by the attending physician with
"domestic violence [and] asphyxiation."
Prior to the
introduction of the medical records at trial, defense counsel
moved to redact, among other things, references to domestic
violence, to the perpetrator's status as a former boyfriend and
to the existence of a safety plan for complainant.
The court
ordered certain portions of the records to be redacted -specifically, any references to a history of abuse and to
statements that complainant had asked the perpetrator to leave
her home and that she had filed a complaint against him.
The
court did, however, permit references to domestic violence, the
perpetrator's relationship to complainant, the description of the
weapon and the existence of a safety plan.
The court also denied
defendant's motion in limine to preclude the attending physician
from making repeated references to "domestic violence," instead
requiring defense counsel to make specific objections if and when
necessary.
In addition to the charges stemming from the October 3
incident, defendant was also indicted on charges pertaining to
three subsequent episodes.
On February 12, 2005, defendant, in
violation of an order of protection, telephoned complainant
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- 4 -
Nos. 162 & 194
repeatedly2 and showed up outside the door to her apartment.
Defendant allegedly caused a disturbance by kicking complainant's
door and yelling for her male houseguest to leave the apartment.
On February 16, 2005, defendant again approached complainant in
violation of an order of protection by meeting her on the street
when she got off the bus on her way home from work.
During this
encounter, defendant allegedly asked complainant not to testify
against him and threatened to kill her.
The following morning,
defendant was waiting for complainant outside her apartment,
again in violation of an order of protection, and accompanied her
part of the way to work until she was able to elude him at a
subway station.
Defendant allegedly told her that he had had a
razor with him the night before and thought about killing her and
killing himself.
Defendant was acquitted of attempted murder in the
second degree, but was convicted of assault in the second degree,
attempted assault in the second degree, criminal possession of a
weapon in the fourth degree, four counts of criminal contempt in
the first degree, two counts of criminal contempt in the second
degree, intimidating a victim or witness in the third degree,
aggravated harassment in the second degree and harassment in the
second degree.
2
A telephone company representative testified that
defendant called complainant's home and cell phone numbers a
combined total of 93 times that day.
- 4 -
- 5 -
Nos. 162 & 194
The Appellate Division affirmed, finding that it was a
proper exercise of discretion for the court to allow limited
references in medical records and testimony to the effect that
complainant "was diagnosed as having been subjected to domestic
violence involving a former boyfriend," as those references were
relevant to the proposed treatment (70 AD3d 479 [1st Dept 2009]).
A Judge of this Court granted defendant leave to appeal, and we
now affirm.
People v Ortega
Complainant, a 26-year-old man, encountered defendant
outside a bodega in Washington Heights at about 4:30 am on July
14, 2007.
Although complainant initially asked defendant to
purchase marijuana for him, complainant testified that defendant
and another man escorted him, at gunpoint, to a nearby building
where they forced him to smoke crack-cocaine from a glass pipe.
The men also allegedly forced him to give them the PIN numbers to
his bank cards.
Subject to threats that he or his family would
be hurt if he did not cooperate, complainant was allegedly forced
to withdraw money from his bank accounts on several occasions
over the course of the morning.
Complainant was allegedly taken
back to the nearby building and was again forced to smoke crack
between the additional trips to obtain cash.
Complainant was eventually able to escape his captors
shortly after noon that day.
When he returned home, he was
shaking, crying and incoherent.
Complainant was taken to the
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Nos. 162 & 194
hospital, where he told medical staff that he "was forced to
smoke [a] white substance from [a] pipe."
Later that night,
defendant was arrested after being pulled over for an unrelated
traffic offense.
He was in possession of a small amount of
crack, as well as complainant's bank cards, identification cards
and cell phone.
Defendant's version of events differed significantly
from complainant's.
Defendant essentially testified that
complainant voluntarily smoked crack with him and that
complainant withdrew the money from his bank accounts of his own
volition.
Defendant also explained that complainant had
willingly handed over his personal property and left it in
defendant's possession.
Defendant was convicted of two counts of criminal
possession of stolen property in the fourth degree.
The
Appellate Division affirmed, finding that even if the court
should have redacted the statements at issue from complainant's
hospital records, any error was harmless (64 AD3d 422 [1st Dept
2009]).
A Judge of this Court granted defendant leave to appeal,
and we now affirm.
Business Records Exception
Under the business records exception to the hearsay
rule, "[a]ny writing or record . . . made as a memorandum or
record of any act, transaction, occurrence or event, shall be
admissible in evidence in proof of that act, transaction,
- 6 -
- 7 -
Nos. 162 & 194
occurrence or event, if the judge finds that it was made in the
regular course of any business and 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]).
This exception applies to criminal proceedings
through Criminal Procedure Law § 60.10.
Generally, business records are deemed trustworthy both
because they reflect routine business operations and because the
person making the particular entry has the responsibility to keep
accurate records that can be relied upon for business purposes
(see Williams v Alexander, 309 NY 283, 286 [1955]).
Hospital
records, in particular, are trustworthy as they are "designed to
be 'relied upon in affairs of life and death'" (Williams, 309 NY
at 288, quoting 6 Wigmore on Evidence [3d ed 1940], § 1707, at
36]) and as they reflect the condition of a patient who has the
clear motivation to report accurately.3
Hospital records fall
within the business records exception when they "reflect[] acts,
occurrences or events that relate to diagnosis, prognosis or
treatment or are otherwise helpful to an understanding of the
medical or surgical aspects of . . . [the particular patient's]
hospitalization" (Williams, 309 NY at 287 [internal quotation
3
In this case we are presented with the most common
scenario in which the information appears to have been derived
from either medical personnel's first-hand observations or the
presumptively reliable first-hand report of the patient to
medical personnel.
- 7 -
- 8 marks and citations omitted]).
Nos. 162 & 194
Where details of how a particular
injury occurred are not useful for purposes of medical diagnosis
or treatment, they are not considered to have been recorded in
the regular course of the hospital's business (see Williams, 309
NY at 288).
For example, in Williams, plaintiff was struck by a
car, but the parties disagreed over how the accident happened.
Plaintiff's statement to a physician that he was hit after a car
that had been stopped at an intersection was propelled into him
by another vehicle was deemed inadmissible.
The statement
concerned the manner in which the accident occurred and was
irrelevant to diagnosis or treatment (see Williams, 309 NY at
288-289).
We noted in Williams that, in certain situations, how
the patient was injured "may be helpful to an understanding of
the medical aspects of his [or her] case" (309 NY at 288).
To
that end, the analysis of some lower courts addressing the
admissibility of medical records in domestic violence or child
abuse situations may be instructive here.
The Second Department
found admissible medical records containing a statement by a
complainant that she was attacked by friends of her former
boyfriend who were trying to stop her from testifying against him
in a domestic violence proceeding (see People v Greenlee, 70 AD3d
966 [2d Dept 2010], lv denied 14 NY3d 388 [2010]).
The
information was found relevant to treatment because it could be
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Nos. 162 & 194
used to develop a discharge plan that would ensure the victim's
safety (Greenlee, 70 AD3d at 967).
Moreover, in a case involving
child abuse, a nurse's testimony that an abused foster child told
her that his foster mother caused his bruises was found proper
because it was germane to diagnosis and treatment (see People v
Caccese, 211 AD2d 976, 977 [3d Dept 1995], lv denied 86 NY2d 780
[1995]).
At least one trial court has found medical records
containing a diagnosis of domestic violence admissible due, in
part, to the close association between the physical and
psychological injuries typically involved (see People v Swinger,
180 Misc 2d 344, 349 [NY County, Criminal Court 1998]; see also
People v Anonymous, 192 Misc 2d 570, 573-574 [Supreme Court,
Bronx County 2002] [medical records containing the identity of an
abuser in a child abuse case found relevant to treatment of the
victim, including potential mental health referrals]).
The inquiry in each case before us remains whether the
statements at issue were relevant to diagnosis and treatment.
In
Benston, defendant argues that several statements from
complainant's medical records should not have been admitted.
The
specific statements that defendant contests are references to an
"old boyfriend" as the perpetrator, the description of the case
as involving "domestic violence," references to a "safety plan"
for complainant and the description of the weapon as a "black"
leather belt.
Defendant also argues that this is not a case of
domestic violence because he and complainant were living together
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- 10 -
Nos. 162 & 194
in a platonic, landlord-tenant-type relationship.
The latter argument is without merit.
Neither
cohabitation nor a current romantic relationship is necessary for
one individual to subject another to acts that will be considered
domestic violence.
Rather, domestic violence is characterized by
a current, or former, intimate relationship between the parties
(see e.g. Criminal Procedure Law § 530.11 [1][e] [for family
offense matters, "members of the same family or household" are
defined to include "persons who are not related by consanguinity
or affinity and who are or have been in an intimate relationship
regardless of whether such persons have lived together at any
time.
Factors the court may consider in determining whether a
relationship is an 'intimate relationship' include but are not
limited to: the nature or type of relationship, regardless of
whether the relationship is sexual in nature; the frequency of
interaction between the persons; and the duration of the
relationship"]; Family Court Act § 812 [1]; see also Social
Services Law § 459-a [2]).
The relationship between these two
individuals, considering both their former relationship and their
living situation at the time of the assault, is clearly one that
is subject to classification as involving domestic violence.
In
this context, it is relevant for purposes of diagnosis and
treatment that complainant's assault was at the hands of a former
boyfriend.
The references to "domestic violence" and to the
- 10 -
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Nos. 162 & 194
existence of a safety plan were admissible under the business
records exception.
Not only were these statements relevant to
complainant's diagnosis and treatment, domestic violence was part
of the attending physician's diagnosis in this case.
With all
that has been learned about the scourge of domestic violence in
recent decades, we now recognize that it differs materially, both
as an offense and a diagnosis, from other types of assault in its
effect on the victim and in the resulting treatment.
In this
context, a doctor faced with a victim who has been assaulted by
an intimate partner is not only concerned with bandaging wounds.
In addition to physical injuries, a victim of domestic violence
may have a whole host of other issues to confront, including
psychological and trauma issues that are appropriately part of
medical treatment.
Developing a safety plan, including referral
to a shelter where appropriate, and dispensing information about
domestic violence and necessary social services can be an
important part of the patient's treatment.
Therefore, it was not
error to admit references to domestic violence and a safety plan
in complainant's medical records.
Contrary to defendant's argument, references to
domestic violence and a safety plan do not lead to the conclusion
that there has been a history of abuse.
It is worth noting that
the trial court here did not admit the medical records in their
entirety.
Rather, the court exercised its discretion by
redacting certain portions of the records, most significantly the
- 11 -
- 12 -
Nos. 162 & 194
references to any history of abuse.
Defendant is correct that it was error to allow any
references to the color of the weapon into evidence.
Although
the nature of the weapon used to strangle complainant -- a
leather belt -- may have been relevant to diagnosis and
treatment, that the belt was black had no relevance.
References
to the color of the belt should not have been admitted, but any
error in that regard was harmless.
The evidence against
defendant was overwhelming and there is no significant
probability that, had the error not occurred, the outcome of the
trial would have been different (see People v Crimmins, 36 NY2d
230, 241-242 [1975]).
In Ortega, the statement that complainant was "forced
to" smoke a white, powdery substance was relevant to
complainant's diagnosis and treatment.
As the trial judge
reasoned, under such a scenario, complainant would not have been
in control over either the amount or the nature of the substance
he ingested.
In addition, treatment of a patient who is the
victim of coercion may differ from a patient who has
intentionally taken drugs.
The references to complainant being
"forced to" consume crack were admissible under the business
records exception to the hearsay rule.
Defendant Benston's remaining argument concerning the
alleged restriction of his right to confront a prosecution
witness during re-cross-examination is without merit.
- 12 -
- 13 -
Nos. 162 & 194
Accordingly, in each case, the order of the Appellate
Division should be affirmed.
- 13 -
People v Oldalys Ortega
People v Maurice Benston
Nos. 162 and 194
SMITH, J. (concurring):
I agree with the result reached by the majority, but I
think its analysis needs to be expanded.
The majority says that hospital records containing
statements made by crime victims are admissible in criminal
prosecutions under the business records exception to the hearsay
- 1 -
- 2 rule.
Nos. 162 and 194
A number of Appellate Division cases say the same thing
(see People v Edwards, 261 AD2d 899 [4th Dept 1999]; People v
Bailey, 252 AD2d 815 [3d Dept 1998]; People v Goode, 179 AD2d 676
[2d Dept 1992]; People v Torres, 175 AD2d 635 [4th Dept 1991];
People v Archie, 167 AD2d 925 [4th Dept 1990]; People v
Singleton, 140 AD2d 388 [2d Dept 1988]).
Some of these cases,
like the majority opinion, rely on Williams v Alexander (309 NY
283 [1955]).
But the majority opinion, and these Appellate
Division cases, ignore a gap in their logic: the business records
exception makes the records themselves, but not hearsay contained
within the records, admissible (Johnson v Lutz, 253 NY 124, 128
[1930]; Flynn v Manhattan & Bronx Surface Tr. Operating Auth., 61
NY2d 769, 771 [1984]).
The hospital records before us present a "hearsay
within hearsay" problem.
They contain not only the written
statements of the hospital employees who created the records -statements to which the business records exception might well
apply -- but also the hearsay statements of the alleged victims.
As a recent lower court decision put it: "Hearsay cannot be
transformed into nonhearsay simply because a business routinely
relies upon it and integrates it into its own records" (Second
Med., P.C. v Auto One Ins. Co., 20 Misc 3d 291, 297 [Civ Ct,
Kings County 2008]).
problem.
Williams, a civil case, presented no such
There, the statement contained in the hospital records
was made by the plaintiff, was offered in evidence by the
- 2 -
- 3 -
Nos. 162 and 194
defendant, and would thus have been admissible as an admission by
an adverse party (People v Johnson, 93 NY2d 254, 260 [1999]).
I agree that the statements in issue here are
admissible, but the business records exception is not enough to
support that conclusion.
It is clear to me that we are
implicitly recognizing, and that the Appellate Division cases
cited above implicitly recognize, another hearsay exception, for
statements made for purposes of medical diagnosis or treatment.
That exception is explicitly recognized in the Federal Rules of
Evidence (Rule 803 [4]), and finds some support in New York case
law (see People v Thomas, 282 AD2d 827, 828 [3d Dept 2001]; Scott
v Mason, 155 AD2d 655, 657 [2d Dept 1989]).
The leading
treatises on New York evidence, however, suggest that the
exception has not been adopted in New York, though they also
suggest that it should be adopted (Fisch, New York Evidence, §§
995-996 [2d ed.]; Prince, Richardson on Evidence § 8-610 [11th
ed.]), and one of them describes recent cases that point in that
direction (Fisch, § 996 at 571).
A hearsay exception for statements of this kind is
justifiable.
Statements to one's own doctor or other healthcare
professional have an intrinsic guarantee of reliability, for only
a foolish person would lie to his or her own doctor when seeking
medical help (see Davidson v Cornell, 132 NY 228, 237 [1892]).
And the exception, it seems to me, is essential to the majority's
decision, consistent with uniform Appellate Division authority,
- 3 -
- 4 -
Nos. 162 and 194
that the evidence at issue in these cases is admissible.
In
other words, I think we are adopting the "medical diagnosis and
treatment" exception to the hearsay rule in this case, and I
think we ought to say so.
Applying the exception to these cases, I agree with the
majority that all the statements in issue (apart from the
harmless reference to the color of the belt used by Benston to
attack his victim) were properly admitted.
I have no difficulty
with Ortega: surely a doctor treating someone for narcotics
poisoning would want to know the circumstances under which the
patient came to ingest the drug.
I find Benston a harder case,
because it is much less obvious that a doctor treating a patient
for attempted strangulation would care whether the patient's
assailant was an ex-boyfriend or a stranger.
I accept, however,
the majority's conclusion that, when a victim of alleged domestic
violence seeks treatment, it is the duty of those treating her to
address not just her physical ailments, but any psychological and
safety issues that her case may present.
This broad understanding of what is relevant to
diagnosis and treatment will, I acknowledge, make quite a lot of
hearsay evidence admissible: when a patient has a mental health
problem, it may often be true that almost any statement about his
or her history will be within the hearsay exception.
But I see
no reason to limit hearsay more strictly in situations like this.
Often, as in both of the present cases, a broad hearsay exception
- 4 -
- 5 -
Nos. 162 and 194
will serve only to admit prior consistent statements, which are
at worst cumulative of the witness's testimony in the courtroom.
In other cases, particularly if they involve domestic violence,
it may serve to admit prior inconsistent statements, not just for
impeachment purposes, but as evidence in chief.
This seems to me
highly desirable: When an alleged victim testifies in court that
her boyfriend or husband never laid a hand on her, a jury should
be allowed to learn of and evaluate, without artificial
restrictions, her previous statement to her doctor describing a
brutal assault.
I see no unfairness to defendants in holding that prior
statements of witnesses, whether consistent or inconsistent with
their in-court testimony, are admissible if made for purposes of
medical diagnosis or treatment.
In either kind of case, the
witness can be cross-examined, and if the statements are
inconsistent the jury, aided by the cross-examination, can decide
which to believe.
These cases do not present the harder problem
that will arise when the out-of-court statement was made by a
person who does not testify at trial.
The majority says nothing
about that problem, and I too think it best to leave it for
another day.
- 5 -
People v Ortega (Oldalys)
People v Benston (Maurice)
Nos. 162 & 194
PIGOTT, J.(concurring):
Although I concur in the results in People v Ortega and
People v Benston because I think any error that occurred in those
cases was harmless, I write separately to underscore two
significant points.
First, it must be noted that the content of
a medical record proffered under CPLR 4518 is, upon a proper
objection, always subject to redaction of information that is
irrelevant or not germane to the patient's medical diagnosis or
treatment (see People v Johnson, 70 AD3d 1188, 1191 [3d Dept
2010]; see also Montes v New York City Trans. Auth., 46 AD3d 121,
124-125 [1st Dept 2007] [trial judge has an obligation to redact
from reports any parts thereof that, standing alone, would not be
admissible, since the fact that certain conclusions are
irrelevant is not changed merely because they are set forth in a
business record]).
To that extent, I agree with Judge Smith that
"the business records exception makes the records themselves, but
not hearsay contained within the records, admissible" (Smith, J.,
concurring op., at 2)
Second, in my view, the majority in Benston interprets
the business records exception too broadly by concluding that the
"diagnosis" of domestic violence and references to a "safety
- 1 -
- 2 -
Nos. 162 and 194
plan" were properly admitted as part of the victim's diagnosis
and treatment.
While I recognize that domestic violence differs
materially as an offense from other types of assault, the
admission of this evidence can be error.
A blanket rule allowing
statements made by the complainant at the time of admission to
the hospital can be just as harmful to a complainant's interests
in some cases as its application here was to the defendant.
It is common knowledge that many domestic violence
victims may mislead medical providers to protect their abusers,
and are known for crafting cover stories to hide their
victimization.
This is also true in cases involving child abuse.
Assuming a victim or a parent relays a cover story to medical
personnel, would that record automatically be allowed in as proof
for the defense, or should the trial judge be afforded the
latitude to exercise discretion in redacting that portion of the
record even though it is considered part of the diagnosis, care
and treatment of the patient?
The mechanism of injury is almost always important, but
hearsay statements that may identify (or misidentify) the alleged
perpetrator or purport to explain the circumstances of an injury
may, in certain circumstances, violate the Confrontation Clause
of the Sixth Amendment.
Thus, conclusory statements such as
"domestic violence" while part of the medical record, in my view,
should have been redacted because whether complainant was
strangled by a former intimate partner or by a stranger was
- 2 -
- 3 -
Nos. 162 and 194
irrelevant to the type of treatment she received for her physical
injuries.
In a similar vein, formulation of a "safety plan" for
use after the complainant left the hospital was not pertinent to
the diagnosis and treatment of her immediate injuries and is
therefore not part of the record that is contemplated by the
exception.
As to People v Ortega, the idea that the complainant
was forced at gunpoint to ingest crack cocaine so that the
defendant could convince him to turn over his ATM card seems to
me unworthy of belief, and therefore, in my view, probably inured
to the benefit of the defendant.
However, absent medical
testimony that the complainant being "forced" to ingest cocaine
was relevant to diagnosis and treatment, it should have been
excluded, not only because complainant's statement "extend[ed] .
. . beyond the basic disclosure[] necessary or germane to
diagnosis and treatment," but also because it bolstered
complainant's testimony (People V Benedetto, 294 AD2d 958, 958959 [4th Dept 2002] [although counselor's notes were certified
and a foundation was properly laid for their admission as
business records, they nonetheless contained hearsay declarations
that bolstered complainant's testimony and therefore should not
have been admitted]).
- 3 -
- 4 *
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Nos. 162 and 194
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In Each Case: Order affirmed. Opinion by Chief Judge Lippman.
Judges Ciparick, Graffeo, Read and Jones concur. Judge Smith
concurs in result in an opinion. Judge Pigott concurs in result
in a separate opinion.
Decided November 23, 2010
- 4 -
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