People v. Giesa
| Decision Date | 03 October 1972 |
| Citation | 337 N.Y.S.2d 233,71 Misc.2d 506 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Cameron GIESA, Defendant. |
| Court | New York City Court |
Thomas J. Mackell, Dist. Atty. (Norman Weiss, of counsel), for plaintiff.
Murphy & Koehler (Bert Koehler, III, of counsel), for defendant.
Many, many auto larceny prosecutions fall by the wayside because automobile owners who have been compensated for their stolen cars or who have recovered such cars lose interest and fail to show up in court. On the other hand, many good citizens lose time from work and wait around for hours at a time, waiting to be called to testify at preliminary hearings, before grand juries and at trials, receiving no compensation from any source for lost time and earnings. District attorneys frequently forfeit cases for failure to prosecute them, because the car owner is unavailable or unwilling to appear. Many other cases are reduced from felonies to misdemeanors--even though they involve late model cars worth thousands of dollars--because the prosecutor finds it necessary to bargain away a felony prosecution in return for the defendant's stipulation that the owner, if called, would testify that he owned the car and gave no permission to the accused to take possession of it.
Tradition, rather than law, seems to have guided prosecutors and judges in determining their course of action in such cases. All too often, district attorneys honestly believe that absent the owner or a stipulation as to his testimony, the prosecution must fail. It would appear that they have surrendered too easily.
The case at hand frames the precise issue. The complainant, at 8:15 on the morning of August 29th, reported to the 107th Precinct that at 8 o'clock he looked for his 2-door, 1972 Mercury in front of his house, where he had parked it, and could not find it. The value of the car, he reported, was $5,500. An official report was made and an alarm was transmitted over police wires, and the report form (formerly known as the UF 61 and now designated as a PD 313--152) was filed in the usual places, in accordance with official Police Department procedure.
At 3 a.m. on August 30th two uniformed officers on regular patrol duty saw a car careening and swerving down a hill at a high rate of speed, apparently out of control. It hit a concrete post and was instantly enveloped in a large cloud of dust and smoke. Three males ran from the car, one from the driver's side and two from the passenger side. The officers gave chase and caught the defendant, who had exited from the passenger side. The other two got away. After making radio inquiry from their patrol car, they placed the defendant under arrest for larceny as a felony, criminal possession of stolen property and unauthorized use of a motor vehicle.
The owner was notified. He came to court and signed the official complaint which is now before the Court. He failed to appear again, and this preliminary hearing has been held in his absence. The district attorney elicited the arresting officer's testimony as to his observations (described above) and his actions. The prosecutor then offered in evidence the Police Department complaint report (the PD 313--152), which the arresting officer, before coming into court, had personally obtained from the officer in charge of the clerical files at the 107th Precinct. The report relates the ownership and the larceny of the car, describes the vehicle and states its value, gives the registration and vehicle identification number and other particulars. All of these facts had been supplied by the owner-complainant, at the time he reported the loss of his car. While still under oath, the arresting officer, a veteran of 15 years, described in some detail the procedure followed in all such cases in the preparation, filing and maintaining of PD 313--152's.
Over the defendant's objection, I have admitted the PD 313--152 under the business entry exception to the rule against hearsay. CPLR 4518(a) says:
Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, 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...
To continue reading
Request your trial
-
Kevin G., In re
... ... In People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420, a manslaughter conviction, the Court of Appeals upheld the admission in evidence of an autopsy report by a ... 10 As to the need to utilize court procedures which expedite without interfering with legal and constitutional principles, see People v. Giesa, 71 Misc.2d 506, 337 N.Y.S.2d 233 and People v. Meyers, 72 Misc.2d 1003, 340 N.Y.S.2d 505 (opinions by Judges Canudo and Berger, respectively, of the ... ...
-
State v. Lungsford
...77 A.L.R.3d 115 (1977); Annotation, "Admissibility of police reports," 31 A.L.R.Fed. 457 (1977). See Contra, People v. Giesa, 71 Misc.2d 506, 337 N.Y.S.2d 233 (Crim.Ct.1972), and People v. Meyers, 72 Misc.2d 1003, 340 N.Y.S.2d 505 The trial judge here evidently admitted the police report as......
-
People v. Meyers
...which prompted denial of the motion. As stated by my learned colleague, the Hon. Eugene A. Canudo recently in People v. Giesa, 71 Misc.2d 506, 337 N.Y.S.2d 233 (1972), an automobile larceny prosecution, many such prosecutions are dismissed for failure to prosecute because the car owner is u......
-
People v. Fields
...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 defen......