Nelson R., Matter of

• Citation: 83 Misc.2d 1081,374 N.Y.S.2d 982
• Parties: In the Matter of NELSON R., a person alleged to be a juvenile delinquent, Respondent. * Family Court, City of New York, Bronx County
• Decision Date: 31 October 1975
• Court: New York City Court

Page 982

374 N.Y.S.2d 982

83 Misc.2d 1081

In the Matter of NELSON R., a person alleged to be a

juvenile delinquent, Respondent. ^*

Family Court, City of New York, Bronx County.

Oct. 31, 1975.

Gary R. Tarnoff, Asst. Corp. Counsel, Brooklyn, for petitioner.

Harold Beeler, New York City (Legal Aid Society), for respondent.

OPINION

NANETTE DEMBITZ, Judge.

A juvenile delinquency petition against the 15-year old respondent alleged his possession of a .22 caliber revolver in violation of Penal Law 265.05, and the evidence proved beyond a reasonable doubt that he possessed a gun. The issue of law is whether the report of the Police Department's laboratory as to the gun's operability, certified on the official laboratory form in accordance with regular procedure, is admissible without the testimony of the certifying police officer.

In Matter of G., 80 Misc.2d 517, 363 N.Y.S.2d 999, this Court held, upon a review of appellate decisions in this and other jurisdictions, that a report of the police department's laboratory on the heroin content of a seized substance is admissible under the CPLR exceptions to the hearsay rule, without the testimony of the certifying chemist. The G., reasoning, which is fully applicable to the instant ballistics report on operability, is supported by the subsequently published decision in People v. Porter, 46 A.D.2d 307, 362 N.Y.S.2d 249 (3rd Dept.). There, in a prosecution for manslaughter and driving while intoxicated, the Court held that a chemist's 'log book' was admissible as a 'business record' under CPLR 4518(a) to establish the alcoholic content of the defendant's blood, and that such admission, without an opportunity for defendant to confront the chemist, was constitutional. While it is true that in Porter the chemist had become unavailable through death, the Court noted that fact in explaining the expediency of its ruling, not its legality.

1. Preparation of Report For Purpose of Litigation

Respondent attacks the admission of the ballistics report herein on the ground that it was 'prepared for the purpose of litigation.' Such a limitation on admissibility has no application to reports which, like the instant one, are prepared by public employees. The city medical examiner's autopsy report, admitted in a manslaughter prosecution without the examiner's appearance in the leading case of People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420, was as much prepared for the purpose of litigation as this ballistics report. (See also People v. Hampton, 38 A.D.2d 772, 327 N.Y.S.2d 961, for admission of an autopsy report.) Such autopsy reports by public officials are rendered for prosecutorial purposes on the basis of suspected criminality (Brown v. Broome County, 8 N.Y.2d 330, 332, 207 N.Y.S.2d 657, 658, 170 N.E.2d 666; Darcy v. Presbyterian Hospital, 202 N.Y. 259, 263--265, 95 N.E. 695, 696--697; County Law, sec. 673; N.Y.C. Charter, sec. 1720(6); N.Y.C.Adm.Code, sec. 878--3(.)o); indeed, the autopsy may 'be considered the start of a judicial proceeding.' Levine v. Kiss, 47 A.D.2d 544, 363 N.Y.S.2d 101. Likewise prepared at the instance of the police for potential use in prosecution were the chemist's reports on alcoholic or narcotic content of seized substances, admitted in evidence without the chemist's appearance in Porter (above); United States v. Frattini, 501 F.2d 1234, 1236 (C.A.2, 1974); United States v. Ware, 247 F.2d 698, 699--700 (C.A.7); Kay v. United States, 255 F.2d 476, 480--481 (C.A.4); Com. v. DiFrancesco, 458 Pa. 188, 329 A.2d 204, 210 (1974); State v. Larochelle, 112 N.H. 392, 297 A.2d 223 (1972); State v. Torello, 103 Conn. 511, 131 A. 429; Bracy v. Commonwealth, 119 Va. 867, 89 S.E. 144; and Com. v. Slavski, 245 Mass. 405, 140 N.E. 465.

Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, cited by respondent, is wholly inapplicable. There it was held that a railroad which secured a statement from its engineer as to the circumstances of an accident in which he participated, could not put that statement in evidence in a negligence case against it. Obviously the routine report herein of a public laboratory is not tarred by the contrived, self-serving quality that inhered in the Palmer report. ¹

The other cases cited by respondent are likewise inapposite. In People v. Roth, 11 N.Y.2d 80, 84, 226 N.Y.S.2d 421, 422, 181 N.E.2d 440, 441, where the issue was the admissibility in regard to guilt of psychiatrists' report on competency, the Court explicitly ruled that their testimony and their report were equally inadmissible. In People v. Samuels, 302 N.Y. 163, 171, 96 N.E.2d 757, 761, the Court merely held that opinions relative to defendant's sanity, though physically attached to a hospital record, had been improperly admitted as a part thereof, the Court stressing that they were vague, unreliable, and attributable to laymen unconnected with the hospital.

People v. Foster, 27 N.Y.2d 47, 313 N.Y.S.2d 384, 261 N.E.2d 389, though also cited by respondent, in fact supports the admissibility of the instant ballistics operability report. In Foster, where the defendant was convicted of driving at excessive speed, a 'speedometer deviation test record' as to the arresting officer's speedometer was held admissible without the testimony of the maker-reporter of the test 'under the business entry exception to the hearsay rule . . . they were not records made outside of the ordinary course of police department business, solely for the instant litigation . . .' (27 N.Y.2d at pp. 51--52, 313 N.Y.S.2d at p. 388, 261 N.E.2d at p. 391).

Foster's mention of the inadmissibility of a record made 'solely for the instant litigation,' apparently was intended to distinguish the routine police report therein from one made for a self-serving purpose to secure a particular litigative result, like that in Palmer v. Hoffman, discussed above (see summary of argument in Foster, 27 N.Y.2d at p. 49, 313 N.Y.S.2d at p. 389, 261 N.E.2d at p. 385). This phrase in Foster has no relevance to a record like the instant one, made by a public employee Without regard for its litigative effect; indeed, if a ballistics report shows that a firearm is 'inoperable' instead of 'operable' (see below as to this occurrence), a criminal prosecution may be defeated. (See e.g. People v. Grillo, 15 A.D.2d 502, 222 N.Y.S.2d 630, affd., 11 N.Y.2d 841, 227 N.Y.S.2d 668, 182 N.E.2d 278.) ²

The operability test report herein is indistinguishable in principle from the speedometer test report held admissible without the reporter's testimony in Foster. Both tests were made for the purpose of detecting law-violators and for use in evidence in a resulting prosecution,--there in the ordinary course of police business of enforcing the speed laws and here the gun laws.

2. Inutility of Testimony of Maker of Operability Report

Operability of a firearm is determined by a test shot (see Misc.Order 948 of N.Y.C. Police Dept., 'The Handling of Evidence--Ballistics Section,' p. 5, par. 4A). No refined instruction or miscroscopic testing, such as relate to determining whether a particular bullet could have been fired from a particular gun (see M.O. 948, pp. 3--5), is involved. ³ Thus, the instant report that the gun possessed by respondent was operable was the product of an even simpler test than the chemical report of alcoholic content admitted in Porter as 'the product of a simple mathematical computation' (46 A.D.2d at p. 311, 362 N.Y.S.2d at p. 255). And if inoperable, the report, as this...