People v Tisdale

[*1] People v Tisdale 2008 NY Slip Op 50201(U) [18 Misc 3d 1125(A)] Decided on February 1, 2008 Criminal Court Of The City Of New York, Kings County Gerstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 1, 2008
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Frankie Tisdale, Defendant.



2007KN059299



Charles J. Hynes, District Attorney (Meredith McCloskey, Esq., of counsel), for the People.

Brooklyn Defender Services (Joshua Saunders, Esq., of counsel), for the Defendant.

Michael J. Gerstein, J.

The Speedy Trial calculation in this case depends primarily upon whether an informant's reliance on business documents allegedly within her possession, but not produced before the Court, constitutes uncorroborated hearsay so as to render the People's Statement of Readiness illusory. The People have argued that the Informant's observations of the documents' contents are admissible under the business records exception to the hearsay rule. We find, pursuant to People v. Ross, 12 Misc 3d 755, 814 NYS2d 861 (Crim. Ct. Kings Co. 2006), that the business records exception is inapplicable where the actual documents have not been submitted. Defendant's motion is therefore granted, and the Complaint dismissed, under the Speedy Trial statute of CPL § 30.30.

Legal and Factual Background

The Defendant is charged with Attempted Petit Larceny (PL § 110/155.25), a class B misdemeanor, Falsifying Business Records in the Second Degree (PL § 175.05(1)), a class A misdemeanor; and Insurance Fraud in the Fifth Degree (PL § 176.10), a class A misdemeanor, upon allegations that he filed a false insurance claim.

The superseding Complaint, served and filed by the People on October 10, 2007, provides, in relevant part:

Deponent [Assistant District Attorney Meredith McCloskey] is informed by the sworn statement of Detective Jose M. Rodriguez ... of the Insurance Fraud Command that Informant is informed by the official records of the New York State Police Department that at the above time and place, Police Officer Shafiyida Beatrice ... completed a police accident report for a collision that involved the Defendant and two unapprehended others at the above location and that the Defendant was inside the back passenger seat of a 1990 Honda ... when the accident occurred.

Deponent is further informed by Informant Joanne Katz, a SIU manager from MVAIC Insurance Company, that the Informant is the custodian of the official buisness [sic] records of [*2]MVAIC and that the Informant observed said business records during the regular course of business to indicate that the Defendant filed a no fault insurance claim on November 11, 2006, and was treated for back and neck injuries at Bay Medical, P.C. as a result of the above mentioned motor vehicle accident that occurred at the above location and that Informant received a bill for $542.14 from Bay Medical P.C. for services provided to the Defendant.

Deponent is further informed by Informant Joanne Katz that Defendant was treated for injuries at HCFMEA as a result of the above mentioned motor vehicle accident that occurred at the above location and that Informant received a bill for $879.73 from HCFMEA for services provided to the Defendant.

Deponent is further informed by Informant Joanne Katz that Defendant was treated for injuries at J.S. Chiro as a result of the above mentioned motor vehicle accident that occurred at the above location and that Informant received a bill for $223.24 from J.S. Chiro for services provided to the Defendant.

Deponent is further informed by Informant Joanne Katz that Defendant was treated for injuries at Family Care Accupuncture [sic] as a result of the above mentioned motor vehicle accident that occurred at the above location and that Informant received a bill for $72.63 from Family Care Accupuncture [sic] for services provided to the Defendant.

Deponent is further informed by the sworn statement of Detective Jose M. Rodriguez that Defendant stated in sum and substance that the Defendant did receive medical treatment at Bay Medical P.C. for injuries to Defendant's neck and back for the above mentioned accident and that the Defendant did not incure [sic] any injuries from the above mentioned accident and that the Defendant went to Bay Medical P.C. and received said services in exchange for Defendant's medical bills being paid.

Deponent is further informed by the sworn statement of Detective Jose M. Rodriguez that Defendant stated that Defendant did agree with the two unapprehended others that the Defendant would file an insurance claim in exchange for one of the unapprehended others to pay Defendant's hospital emergency room and ambulance transportation bill that was incurred from the above-mentioned accident.

In connection with this second Complaint, the People served and filed a Statement of Readiness; a Supporting Deposition signed by Joanne Katz; and a copy of the original Complaint, which the Statement of Readiness refers to as a "sworn statement of Detective Jose M. Rodriguez." The People further served and filed a NYPD accident report, which is poorly photocopied, but which appears to indicate the vehicle referenced in the Complaint. The People have not filed the medical bills or insurance claim referenced by Informant Katz.

On October 24, 2007, this Court found that the People's failure to serve and file these MVAIC records left the Complaint unconverted. On this motion, we revisit our prior decision in light of the parties' arguments, and find that the Complaint was indeed unconverted, and that the People's Statement of Readiness of October 10, 2007, was therefore illusory. See People v. England, 84 NY2d 1, 636 NE2d 1387, 613 NYS2d 854 (1994); People v. Miniero, 179 Misc 2d 830, 686 NYS2d 617, 1999 NY Slip Op. 99088 (Crim. Ct. Kings Co. 1999) (a Statement of Readiness is a nullity if made when there is no valid Information).

The Parties' Arguments

Defendant argues that the People's prior Statement of Readiness of October 11, 2007, was [*3]illusory, and that the superseding Complaint could not be converted without the medical bills allegedly received by Informant Katz.[FN1] He further argues that in order to convert the Complaint, the People were also required to serve and file a corroborating affidavit signed by Police Officer Shafiyida; a corroborating affidavit signed by Detective Rodriguez, other than the original Complaint; and corroboration for Defendant's statements.

The People concede that they are chargeable for 64 days between Defendant's arraignment on the original Complaint and the Statement of Readiness they filed along with their superseding Complaint, on October 11, 2007. They argue, however, that their Statement of Readiness was valid. The People argue that the Complaint is converted without the MVAIC documents, because these fall within the business records exception to the hearsay rule. The People further argue that the NYPD accident report converts the first paragraph of the Complaint, regardless of whether Police Officer Shafiyida's signature is visible; that Defendant's statements fall under the admissions exception to the hearsay rule, thus requiring no further corroboration; and that the original Complaint, which is signed by Detective Rodriguez, is sufficient to convert the portion of the superseding Complaint that was observed by him.

Because we find, as per our prior ruling in Court, that Joanne Katz' reliance on the contents of the MVAIC records constitutes hearsay which does not fall under any exception, we need not reach the other issues argued by Defendant.

The Informant's Reliance on Business Records Constitutes Uncorroborated Hearsay

Readiness sufficient to toll the People's Speedy Trial time requires both a communication of readiness on the record, and actual readiness to proceed to trial. People v. Kendzia, 64 NY2d 331, 337, 476 NE2d 287, 289, 486 NYS2d 888, 890 (1985); People v. Miraglio, 17 Misc 3d 165, 170, 840 NYS2d 284, 288 (Crim. Ct. Kings Co. 2007). Without an information, that is, a non-hearsay accusatory instrument, the People cannot communicate an effective readiness for trial. People v. Colon, 59 NY2d 921, 453 NE2d 548, 466 NYS2d 319 (1983). See also People v. Weinberg, 34 NY2d 429, 315 NE2d 434, 358 NYS2d 357 (1974) (a Defendant in a criminal case is entitled to be prosecuted by an information).

Hearsay is generally defined as a statement made out of court, which is offered for the truth of its content (See People v. Nieves, 67 NY2d 125, 131, 492 NE2d 109, 112, 501 NYS2d 1, 4 (1986); Prince, Richardson on Evidence § 8-101 (Farrell, 11th ed)), whether the statement is oral or written. Sadowsky v. Chat Noir, 64 AD2d 697, 407 NYS2d 562 (2d Dept. 1978); Lumpkin v. Aetna Cas. & Sur. Co., 21 AD2d 860, 251 NYS2d 203 (1st Dept. 1964). In this case, Informant relies on MVAIC records to assert that Defendant filed a no fault insurance claim on November 11, 2006, and was treated for injuries at four different facilities. This reliance on uncorroborated documents for the truth of their contents falls squarely within the [*4]hearsay rule. See People v. Armfield, 189 Misc 2d 556, 734 NYS2d 817 (Crim. Ct. Rich. Co. 2001) (police officer's allegation, based on DMV records, that the Defendant was operating a motor vehicle with a suspended license was hearsay requiring corroboration by a copy of these records); People v. Ross, supra , (the allegation, based on HRA records, that Defendant was a recipient of medical benefits was hearsay).

The People, by their argument, concede that these statements are hearsay, but assert that they are nevertheless admissible under the Business Records exception to the hearsay rule. They argue that the language of the Complaint properly lays the foundation for this rule, by establishing that Joanne Katz was the custodian of the documents on which she relies, and that the documents were "observed in the regular course of business." We disagree.

The business records exception provides that "[a]ny writing or record ... made as a memorandum or record of any ... event, shall be admissible in evidence in proof of that ... event, if the judge finds that it was made in the regular course of any business." CPLR § 4518(a). The rule allows for the entry into evidence of these documents on the grounds that "records systematically made for the conduct of a business as a business are inherently trustworthy ... because the entrant's obligation is to have them truthful and accurate." People v. Kennedy, 68 NY2d 569, 503 NE2d 501, 510 NYS2d 853 (2d Dept. 1985), aff'd, 68 NY2d 569, 503 NE2d 501, 510 NYS2d 853 (1986). This exception, however, is limited to the business records that satisfy the statute. See Johnson v. Lutz, 253 NY 124, 170 N.E. 517 (1930) (a business record satisfies the hearsay exception when the maker of the document records an event of which he or she has personal knowledge).

The fatal flaw in the People's argument is not simply that Joanne Katz had no personal knowledge of Defendant's alleged medical treatment, but that the People are attempting to apply the business records exception without submitting business records. It is impossible for this Court to determine, from the naked foundation the People have laid and without production of the documents, whether the documents fall within the business records exception, and we therefore decline to apply it. People v. Ross, supra , (informant's allegation, based on documents in her possession but not submitted before the Court, that Defendant received Human Resources Administration (HRA) benefits was hearsay, and could not be admitted under the business records exception where the documents were not produced); People v. Pierre, 157 Misc 2d 812, 599 NYS2d 412 (Crim. Ct. NY Co. 1993) (the allegation that arresting police officer found that Defendant's license was suspended based on a computer check of Department of Motor Vehicle records was hearsay, requiring the filing of a DMV abstract); People v. Barnes, 177 AD2d 989, 578 NYS2d 9 (4th Dept. 1991) (reversing a case in which emergency room nurse reiterated contents of Complainant's version of the events, and finding that this testimony was inadmissible under the business records exception where the medical records were not introduced).

The purpose of the business records exception is to relieve the movant of the documents from the burden of being required to produce the person or persons who created the documents sought to be introduced, and instead allow introduction of the documents based only on testimony of their custodian, rather than their author, when the records are made in the regular course of business and it is the regular course of that business to make those documents. Prince, Richardson on Evidence § 8-305 (Farrell, 11th ed). This rule, however, does not excuse production of the records in favor of a mere statement by a custodian, who lacks personal knowledge, as to the supposed contents of the records. Any such interpretation would stand the [*5]rule on its head and, in a criminal trial, could well be deemed to violate the right of confrontation, as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

The fact that the Informant Joanne Katz was custodian of the records, and "observed them" in the regular course of business may well have established the foundation for the documents, but does not vouch for the reliability of their contents. People v. Pierre, 157 Misc 2d 812, 816, 599 NYS2d 412. People v. Ross, supra . The People have offered no law under which the business records exception could apply without the records.

We therefore affirm our prior ruling of October 24, 2007, and find that the Complaint contains uncorroborated hearsay, rendering the People's Statement of Readiness illusory. People v. England, supra . We must now determine whether the People have time remaining to convert the case.

The People Have Exceeded the Time Allotted to them Under CPL § 30.30

A. The Applicable Time Period is 90 Days From the Filing of the Accusatory Instrument

CPL § 30.30(1)(b) provides that the People must be ready for trial within 90 days from the commencement of the action where a defendant is charged with one or more offenses at least one of which is a class A misdemeanor, and none of which are felonies. This is the case here.

B. The People Are Chargeable with 131 Days

The Defendant was arraigned on August 7, 2007, the day after the accusatory instrument in this case was filed. On that date, the Defendant was released on his own recognizance, and The case was adjourned to October 24, 2007, for conversion. CPL § 30.30(1)(b).

On October 10, 2007, the People served and filed a Statement of Readiness; their superseding Complaint; the Supporting Deposition of Joanne Katz; a copy of the original Complaint; and a copy of the NYPD Police Accident report, purportedly mirroring the Complaint. As we held above, the People's failure to convert the hearsay in the portion of the Complaint observed by Joanne Katz rendered their Statement of Readiness invalid, so that it failed to toll the People's Speedy Trial time. People v. England, supra . The People are therefore charged with the entire 77 days of this adjournment (August 8, 2007 - October 24, 2007).

On October 24, 2007, the Court found the Complaint unconverted, ruling that the People were required to serve and file the MVAIC records allegedly observed by Informant Joanne Katz, and adjourned the case to November 7, 2007. The People are charged with the 14 days of this adjournment (October 24 - November 7, 2007), and were by then beyond their Speedy Trial time.

On November 7, 2007, the Court noted the absence of additional corroboration, and adjourned the case to December 17, 2007. The People are charged with 40 days for this adjournment (November 7, 2007 - December 17, 2007). CPL § 30.30(1)(b).

On December 17, 2007, Defendant served and filed the instant motion. Defendant's motion time is excluded. People v. Lacey, 260 AD2d 309, 690 NYS2d 182 (1st Dept.), lv. to app. denied, 93 NY2d 1003, 695 NYS2d 749, 717 NE2d 1086 (1999).

On February 1, 2008, the Court issued its decision. The time elapsed between the date [*6]when Defense Counsel filed and served the instant motion and the date the motion was decided is excluded. People v. Worley, 66 NY2d 523, 488 NE2d 1228, 498 NYS2d 116 (1985) (adjournment caused by pending motion is excludable).

The People are therefore chargeable with 131 days (77 + 14 + 40), and are in excess of their Speedy Trial time.

Conclusion

For the foregoing reasons, we affirm our ruling of October 24, 2007, and find that the Complaint contains uncorroborated hearsay, inadmissible under the business records exception. Because the People failed to properly convert the allegations within their Speedy Trial time, Defendant's motion to dismiss the Complaint is granted, and we therefore need not reach Defendant's other arguments.

This constitutes the decision and order of the Court.

Dated:February 1, 2008

Brooklyn, New York

_________________________

MICHAEL GERSTEIN, J.C.C. Footnotes

Footnote 1:Defendant originally advanced these arguments in a letter served and filed on October 31, 2007, and which he incorporates in his motion.