People v. Meyers

• Court: New York City Court
• Writing for the Court: M. MARVIN BERGER
• Citation: People v. Meyers, 72 Misc.2d 1003, 340 N.Y.S.2d 505 (N.Y. City Ct. 1973)
• Decision Date: 21 January 1973
• Parties: The PEOPLE of the State of New York v. Lenny MEYERS, Defendant.

Page 505

340 N.Y.S.2d 505

72 Misc.2d 1003

The PEOPLE of the State of New York v. Lenny MEYERS, Defendant.

Criminal Court of City of New York, Kings County, Part I.

Jan. 21, 1973.

Eugene Gold, Dist. Atty., Kings County, by George Weinbaum, Asst. Dist. Atty., for the People.

Robert Kasanof, New York City, Legal Aid Society, by Stephen Bennett, Brooklyn, for defendant.

M. MARVIN BERGER, Judge.

This case raises the question whether an information charging a man with stealing and criminal possession of automobile license number plates may survive a preliminary hearing, despite the fact that the owner of the vehicle to which the plates were attached never testified that as the owner of the vehicle, he had never authorized the defendant to take or possess the plates.

On September 25, 1972, at noon, at Hart Street and Broadway in the Borough of Brooklyn, New York City patrolman Richard Nabet saw the defendant, Lenny Meyers, unscrewing a license plate from a 1965 Ford automobile. The officer circled the block in his patrol car and on his next observation saw that one plate had been removed and was on the ground alongside Meyers who was removing the second plate. Patrolman Nabet questioned Meyers who said that the car belonged to a friend of his daughter, and that the friend, whose name and whereabouts Meyers couldn't state, had asked his daughter to request that he remove the plates.

Further investigation disclosed that two days earlier, Bertha Ramsey of Babylon, New York had notified the Suffolk County policy that her car was missing. The police issued an alarm. The license number of the plates on the Ramsey car, a Ford sedan, was identical with the number on the plates being removed by Meyers.

Meyers was arrested on charges of petit larceny and criminal possession of the number plates and possession of burglar's tools, the screwdriver and wrench which he had been using.

At a preliminary hearing, after Nabet had testified to the foregoing facts, the defendant moved for dismissal on the ground that the People had failed to establish reasonable cause to believe that the defendant had committed the misdemeanors charged, in the absence of the testimony of the owner of the vehicle to which the plates belonged, establishing her ownership and lack of authority of the defendant to use the number plates. The Court denied the motion and directed a jury trial of the case. This opinion explains the reasoning 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 unavailable or unwilling to appear or are reduced from felonies to misdemeanors '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.'

Judge Canudo asserted that a New York City Police Department complaint report (Form PD 313--152) produced from the files of the arresting officer's precinct reciting facts relating to 'the ownership (of) and (to) the larceny of the car, describes the vehicle and states its value, gives the registration and vehicle identification number and other particulars . . . supplied by the owner-complainant, at the time he reported the loss of his car' was a business entry exception to the rule against admissibility of hearsay evidence (CPLR 4518(a)). That rule permits admission into evidence of a memorandum or record of any transaction, occurrence or event made in the regular course of business, as proof of such happening, provided it was made in accordance with regular practice and simultaneously with or within a reasonable time after the event.

In Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930) the Court of Appeals held that a police report may not be admitted as a business record exception to the hearsay rule, unless the recorder witnesses the event, or the person supplying the facts to the recorder was under a business duty to do so.

A number of cases decided after Johnson, appear to have modified the business duty requirement. They are summed up in the opinion in Toll v. State of New York, 32 A.D.2d 47, 299 N.Y.S.2d 589 (3rd Dept. 1969) in the following language:

'. . . in Kelly v. Wasserman, 5 N.Y.2d 425, 185 N.Y.S.2d 538, 158 N.E.2d 241 (1959), in allowing the receipt of a record of the Welfare Department reciting statements of defendant, it appeared that the requirement that the informant be under a business duty to impart the information was abandoned. (Cf. Gutin v. Frank Mascali & Sons, 11 N.Y.2d 97, 99, 226 N.Y.S.2d 434, 435, 181 N.E.2d 449, 450 (1962)). In Zaulich v. Thompkins Sq. Holding Co., 10 A.D.2d 492, 200 N.Y.S.2d 550 (1st Dept., 1960), where plaintiff's at trial version of an accident was at variance with that given by him at the scene to a policeman and then recorded in the police report, the report was held to be admissible as a record made in the regular course of business and that it was, in any event, competent evidence to rebut the inference by plaintiff's counsel that the patrolman's testimony was a recent fabrication. In Chemical Leaman Tank Lines v. Stevens, 251 N.Y.S.2d 240, 21 A.D.2d 556 (3rd Dept., 1964), a deputy Sheriff's report containing defendant's description of an accident, which was at variance with that related by her on trial, was received, it being held that the report was admissible as a business record and that the statements to the deputy were admissible as admissions of a party.'

The relaxation of the rule, suggested by the holding in Kelly v. Wasserman (supra) may be illusory. As pointed out in Chemical Leaman Tank Lines v. Stevens (supra), the informant's statements 'would have been admissible, in any event, as admissions of a party . . .'

In 1970, the Judicial Conference promulgated an amendment to Rule 4518 of the Rules portion of the CPLR by adding subdivision (c) to the effect that hospital records (CPLR 2306) and books, papers or other things of a library, department or bureau of a municipal corporation (CPLR 2307) 'are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, library, department or bureau of a municipal corporation or of the state, or by an employee designated for that purpose.'

The language might perhaps supply what has been described as the truth-step, bridging the gap between proof that a statement was made and incorporated in a business record and proof that the statement is true. However, it appears that the amendment offected only a technical change with a remedial purpose only. In the words of the Sixteenth Annual Report of the Judicial Conference (1971) p. 43 'It is of course intended that the admissibility under this subdivision of the contents of the pertinent records would be governed by the same standards of relevancy which govern admissibility under subdivision (a)'.

Nevertheless, there may be a 'business duty' basis for accepting a police report to demonstrate ownership of a stolen motor vehicle, and prima facie evidence of its theft, sufficient to permit what Judge Lehman has termed 'provisional confidence' to be placed in them (Roge v. Valentine, 280 N.Y. 268, 278, 20 N.E.2d 751, 755 (1939)).

The Court takes judicial notice of the fact that the Rating Bureau of the New York State Department of Insurance, with which all casualty insurance policies operative in this state are filed, reports that virtually all automobile theft policies carry a condition requiring the insured to notify the insurer in writing of the particulars of an accident, occurrence or loss, and, in the event of theft, also to notify the police.

The rationale for such a policy requirement is obvious. Not only may a report to the police result in recovery of the vehicle, but it may serve to apprehend the thief and prevent other thefts.

True, New York has never recognized the common law crime of misprision, the failure to report a crime, to raise the 'hue and cry'. Nor, unlike the United States has the state ever made the offense a statutory crime. (United States v. Caldwell, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Lancey v. United States, 356 F.2d 407 (C.A.9), cert. den. 385 U.S. 922, 87 S.Ct. 234, 17 L.Ed.2d 145 (1966)). And, absent knowledge of the commission of a crime coupled...