People v. Klein
| Decision Date | 19 November 1984 |
| Citation | 481 N.Y.S.2d 743,105 A.D.2d 805 |
| Parties | The PEOPLE, etc., Respondent, v. Frank H. KLEIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Shaw, Goldman, Licitra, Levine & Weinberg, P.C., Garden City (Robert E. Goldman, Harvey Weinberg, Jesse I. Levine and Marc A. Pergament, Garden City, of counsel), for appellant.
Edward J. Kuriansky, Deputy Atty. Gen., New York City (Bonnie H. Stein and Arthur G. Weinstein, New York City, of counsel), for respondent.
Before TITONE, J.P., and MANGANO, THOMPSON and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 23, 1982, convicting him of grand larceny in the second degree (two counts), attempted grand larceny in the second degree, and offering a false instrument for filing in the first degree (three counts), upon a jury verdict, and imposing sentence.
Judgment affirmed.
The only substantial question on this appeal is whether it was error to receive certain records of the Yeshiva Torah Vodaath into evidence as business records.
At trial, the prosecution contended that certain payments made to Yeshiva Torah Vodaath by vendors who supplied the Fairview Nursing Home, which was owned and operated by defendant, were remitted to defendant, thereby reducing the home's expenditures for such supplies. In order to establish its case, the prosecution sought to introduce the "loan and exchange" ledgers of the Yeshiva into evidence. The entries in these subsidiary ledgers were based upon entries in the Yeshiva's cash receipt and cash disbursement books which had been stolen and were therefore unavailable at the time of trial. The trial court determined that the entries in the loan and exchange ledgers were made in the regular course of business, that it was the regular course of business of the Yeshiva to make such entries, and that consequently the ledgers could be admitted as business records.
Defendant urges that an insufficient foundation was laid for the admission of the ledgers, and that he was denied his constitutional right to confront the person who made the entries in the cash disbursement book, which was one of the books used to create the subsidiary ledgers admitted into evidence. We disagree.
The loan and exchange ledgers were properly received into evidence under the business records exception to the hearsay rule (CPLR 4518, subd. ) and the foundational objections go to weight, rather than admissibility (see Standard Oil Co. of Cal. v. Moore, 251 F.2d 188, 223, cert. den. 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148; McCormick, Evidence § 309, p. 878; 5 Weinstein-Korn-Miller, NY Civ.Prac., pars. 4518.17, 4518.20). "Where the original record is routinely copied into a more permanent form, with the original then being destroyed, the copy may be made at any time the routine of the business requires; since memory is not being relied upon, the concept of a contemporaneous entry is not in point" (5 Weinstein-Korn-Miller, NY Civ.Prac., par. 4518.17, p. 45-439; see Matter of "Male" G., 97 Misc.2d 283, 411 N.Y.S.2d 102).
Nor did the receipt of such evidence violate defendant's constitutional right to "be confronted with the witnesses against him" (U.S. Const., 6th Amdt; N.Y.Const., art. I, § 6). It is well established that the right of confrontation is not infringed by the admission of business records into evidence during the course of a criminal trial (see Dutton v. Evans, 400 U.S. 74, 95-96, 91 S.Ct. 210, 222-23, 27 L.Ed.2d 213 Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 332, 78 L.Ed. 674 People v. Nisonoff, 293 N.Y. 597, 59 N.E.2d 420, cert. den. 326 U.S. 745, 66 S.Ct. 22, 90 L.Ed. 445; United States v. Lipscomb, 435 F.2d 795, cert. den. 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331; United States v. Leathers, 135 F.2d 507, 511; McCormick, Evidence § 252, pp. 749-753; 5...
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Table of cases
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