People v. DiSalvo

• Decision Date: 25 June 2001
• Citation: 284 AD2d 547,727 N.Y.S.2d 146
• Court: New York Supreme Court — Appellate Division
• Parties: (A.D. 2 Dept. 2001) The People, etc., respondent, v. Stephen DiSalvo and A & S DiSalvo Co., Inc., appellants. 2000-07551 2000-07553 : SECOND JUDICIAL DEPARTMENT

Page 146

727 N.Y.S.2d 146 (A.D. 2 Dept. 2001)

The People, etc., respondent, v. Stephen DiSalvo and A & S DiSalvo Co., Inc., appellants.

2000-07551

2000-07553

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

June 25, 2001.

Andrew C. Quinn, White Plains, N.Y., for appellants.

Jeanine Pirro, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and Richard Longworth Hecht of counsel), for respondent.

DAVID S. RITTER, J.P., ANITA R. FLORIO, HOWARD MILLER, and STEPHEN G. CRANE, JJ.

Appeals by the defendants from two judgments (one as to each defendant) of the Supreme Court, Westchester County (Perone, J.), both rendered July 5, 2000, convicting each of the defendants of grand larceny in the second degree, upon jury verdicts, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant A & S DiSalvo Co., Inc. (hereinafter A & S), is a Westchester County garbage hauling company which transports both public and private garbage to the Resco Burn Plant (hereinafter Resco) in Peekskill. The defendant Stephen DiSalvo is the president of A & S.

The evidence adduced at trial established that between 1991 and 1997, when A & S was under contract to remove and dump garbage for the Town of Ossining (hereinafter the Town), its drivers commingled the Town's garbage with private garbage from commercial customers under instructions from DiSalvo, thereby causing the Town to be billed for the dumping of the entire load. At trial, the People used as a base line the tonnage collected, dumped, and billed to the Town by DiSalvo in 1998, a year in which the defendants had demonstrably ceased commingling public and private garbage. When the 1998 tonnage (475 tons) was subtracted from the values for 1991 through 1997 (ranging from 717 to 1192 tons), the People established the quantity of improperly commingled commercial garbage to be 3,456 tons, for the disposal of which the Town had paid. The value of this excess tonnage processed at municipal rates was calculated to be $68,417.

Contrary to the defendants' contentions, the "dump tickets" generated by Resco, as well as the electronic transmission of the identical data printed out in the Westchester County Department of Environmental Facilities (hereinafter the Department), were properly admitted into evidence as business records. Those records were the sole sources of billing information on which Westchester County (hereinafter the County) allocated waste-disposal costs among its municipalities. The trial evidence established that the dump tickets and computer print-out reflected the weight of the garbage DiSalvo delivered to Resco, as well as the Town's account to which DiSalvo's drivers indicated the deliveries should be charged. Resco's employees entered all relevant information into its computer, which in turn generated the dump tickets and the print-out. Accordingly, the dump tickets and computer print-out were made in the regular course of business, it was the regular course of business of all parties to create such records, the individuals imparting and entering the information had a...