People v. Fields

• Decision Date: 02 May 1973
• Citation: 74 Misc.2d 109,344 N.Y.S.2d 413
• Parties: The PEOPLE of the State of New York v. Harvey L. FIELDS, Defendant. The PEOPLE of the State of New York v. Australia SHIPP, Defendant. The PEOPLE of the State of New York v. William J. HUDSON, Defendant.
• Court: New York District Court

Page 413

344 N.Y.S.2d 413

74 Misc.2d 109

The PEOPLE of the State of New York v. Harvey L. FIELDS, Defendant.

The PEOPLE of the State of New York v. Australia SHIPP, Defendant.

The PEOPLE of the State of New York v. William J. HUDSON, Defendant.

District Court, Nassau County, First District.

May 2, 1973.

Sidney L. Katz, Hempstead, for defendant Harvey L. Fields.

Carl Strauss, Carle Place, for defendant William J. Hudson.

James J. McDonough, Mineola, and Patrick J. McCormack, Hollis, for defendant, Australia Shipp Legal Aid Society of Nassau County.

FRANCIS J. DONOVAN, Judge.

DECISION ON MOTION

The defendants are charged with violations of Section 165.05 of the Penal Law.

Each defendant moves to dismiss the information on the sole ground that it does not contain any Non-hearsay evidence on the element of the crime: lack of consent of the owner.

Annexed to the information is a certified copy of the police teletype message from the New York City Police Department received by the Nassau County Police Department identifying the car in which the defendants were observed to be riding as one reported stolen to the New York City Police Department. The car is identified by make, year and registration number.

The questions presented are:

1. What is meant by 'non-hearsay' as that term is used in Section 100.40 of the Criminal Procedure Law?

2. Is a business entry which is admissible in evidence on a trial pursuant to Rule 4518 C.P.L.R., when made part of an information, competent proof?

3. Is a teletype communication annexed to this information admissible on a trial pursuant to Rule 4518 C.P.L.R.?

4. Does the teletype communication constitute sufficient evidence of lack of consent of the owner (Penal Law, § 165.05)?

The term Non-hearsay is not defined in the statute. Business records are hearsay. (Richardson, Evidence, (9th ed.), § 225). Yet they are not excluded by the rule against admission of hearsay if they pass the test of Rule 4518 C.P.L.R. In the latter case they are not Objectionable hearsay. Simply stated, the term Hearsay may be used with two meanings: (1) Hearsay generally, which includes business records described in Rule 4518; or (2) Objectionable hearsay, which does not include such business records.

In People v. James, 4 N.Y.2d 482, at page 485, 176 N.Y.S.2d 323, at page 325, 151 N.E.2d 877, at page 879, the Court of Appeals, said that an information would be sufficient if 'the identifiable sources of such information and the grounds of such belief' were set forth. This was what we may call Identifiable hearsay, but the court did not then and, has not since defined or elaborated on the meaning of the term. The court was clearly dividing hearsay into two categories: Identifiable and Non-identifiable. At the time the law on the sufficiency of informations was evolving in the cases, the thinking of the court had not perhaps crystallized to the point where it was ready to define Identifiable hearsay. But surely the court was cognizant of the exceptions to the hearsay rule, particularly insofar as it related to business and public records. Such records are readily identified by reference to such things as numbers, dates, volumes and pages. They readily fit the definition of Identifiable hearsay as that term would commonly be understood. Such an apt term to cover exceptions to the hearsay rule was not carried over to the Criminal Procedure Law nor was any other term or any other language used in the new procedure law to explicitly recognize or authorize the use of hearsay exceptions in informations. In this state of the law, such exceptions must be authorized implicitly in the Criminal Procedure Law or we have the absurd result that the rules for making an information are more stringent than those applicable to criminal trials and hearings. In the light of the historical case background and the absurdity of any other construction, we must construe Hearsay as used in the Criminal Procedure Law to mean hearsay which is not admissible on the trial.

A business entry which passes the test of Section 4518 is competent proof in an information and the certified copy of the teletype message passes that test.

The subject of police records and their admissibility to prove larceny of automobiles was recently reviewed in People v. Meyers, 72 Misc.2d 1003, 340 N.Y.S.2d 505. The court said, at page 1007, 340 N.Y.S.2d at page 510:

'Even in the absence of eyewitness testimony, a prima facie case of larceny may be readily made out without the direct testimony of the owner of the vehicle. The contractual obligation of the owner of the automobile to report its theft was sufficient to warrant receiving in evidence the report of the theft, as an exception to the rule against hearsay evidence. An additional argument for placing provisional confidence in the owner's report that his car had been stolen, is to be found in the provisions of Section 240.50 of the Penal Law, which make it a misdemeanor for a person to report gratuitously to a law enforcement officer or agency the alleged occurrence of an offense or incident which did not in fact occur. The duty to report truthfully an occurrence calling for police service, is a duty of reasonably conduct imposed by common law as well as by statute (Daas v. Pearson, 66 Misc.2d 95, 319 N.Y.S.2d 537, affd. 37 A.D.2d 921, 325 N.Y.S.2d 1011, 2d Dept., 1971).'

The court was of course referring there to the initial or primary record of the owner's complaint (Form P.D. 313--152) which had been the subject of similar comment in People v. Giesa, 71 Misc.2d 506, 337 N.Y.S.2d 233. The teletype record in this case is not the primary record but it is a record which is made from that primary record. The defendants call attention to the best evidence rule and insist that the prosecution should be compelled, at least, to annex the initial complaint of the owner. The best evidence rule applies only to original writings as contrasted to copies, or parol, or other evidence, in substitution, or...