People v. Patterson

• Decision Date: 22 December 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert PATTERSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 544

68 N.E.3d 1242

46 N.Y.S.3d 511

2016 N.Y. Slip Op. 08582

The PEOPLE of the State of New York, Respondent,

v.Robert PATTERSON, Appellant.

Court of Appeals of New York.

Dec. 22, 2016.

Seymour W. James, Jr., The Legal Aid Society, New York City (Ellen Dille of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Ryan P. Mansell, Marianne Stracquadanio and Nancy Killian of counsel), for respondent.

OPINION OF THE COURT

STEIN, J.

In this appeal, we are asked to determine whether the Appellate Division properly upheld the admission of subscriber information in prepaid cell phone records as nonhearsay evidence located within a business record. Because the subscriber information was not introduced for the truth of the matters asserted therein, the courts below properly determined that it was independently admissible.

I.

Defendant was convicted, after a jury trial, of second-degree burglary and robbery. The charges arose out of an incident in which defendant and another man entered the victim's bedroom wearing bandanas and carrying pistols after defendant's accomplice, Daichele Goree—who went to the victim's apartment by invitation—received a series of cell phone calls while she was there. The victim testified that he could see defendant's forehead, eyebrows, the bridge of his nose, his nostrils and the top of his ears. The men directed the victim to get on the ground, taped his wrists, mouth and ankles, and took the victim's cash and various items of personal property. The victim freed himself and called 911, but he was unable to give the 911 operator a description of the men apart from stating that they were black, wore bandanas and carried guns.

When police arrived shortly thereafter, the victim gave Goree's phone number to a detective, and provided a very general description of the robbers as young black men, about six feet tall, with red bandanas up to their noses. The detective subpoenaed Goree's phone records and discovered that one of three numbers called during the time frame of the incident was connected to a Sprint/Nextel account registered to a "Darnell Patterson," with an address and date of birth that were associated with defendant in police databases. The victim subsequently identified defendant in a lineup as one of the assailants and defendant was arrested; the date of birth that he provided to police upon his arrest was the same as that set forth in the Sprint subscriber information.

Prior to trial, defendant moved to preclude the People from offering into evidence the subscriber information portion of the Sprint records, arguing that it constituted hearsay within hearsay. Defendant conceded that the log of the phone calls was admissible under the business records exception, but argued that the subscriber information was not admissible pursuant to that exception because the subscriber who initially provided the information had no duty to report it accurately. Because the records stated on their face that they could be inaccurate or incomplete, defendant argued that they should be precluded. The People conceded that the subscriber information did not prove that the person who registered the phone was Darnell Patterson or that defendant was in the room when the robbery took place, but maintained that the evidence was admissible for two limited purposes: to complete the narrative; and to show that the phone number that Goree called around the time of the robbery had been registered by someone using the name Darnell Patterson, with defendant's address and birth date.

Supreme Court concluded that the subscriber information was not admissible merely for the purpose of "complet[ing] the narrative," given that the People sought to argue that the information corroborated the victim's eyewitness identification of defendant. However, the court ruled that it would admit the subscriber information as a "business record[ ]" through a Sprint representative's testimony that it was Sprint's regular course of business to make and keep these records, but that Sprint did not verify the information and, therefore, "disclaim[ ed] any reliability." The court recognized that, because the subscriber had no business duty to provide accurate information, the business records exception to the hearsay rule did not apply, but concluded that the subscriber history was admissible "for the purpose of showing that this is the information that was given, the fact that [the] information was given at a time that well preceded the crime itself." That is, the court determined that the subscriber information was admissible, not for the truth of the matters asserted therein, but for the nonhearsay purpose of showing that this particular cell phone was activated by someone who supplied identifying information linked to defendant, thereby providing corroborating evidence for the victim's identification of defendant in a lineup.

At trial, defendant repeated his objections to the Sprint cell phone records and also argued that the subscriber information on Goree's T–Mobile cell phone records should not be received in evidence. The court overruled the objections. As relevant here, representatives of both Sprint and T–Mobile testified that the records containing subscriber information for prepaid phones are made at the time the subscriber activates the phone, the call logs are recorded or cataloged at or around the time the calls are made, and the person recording all of the information contained in the records has a business duty to record it fairly, accurately and completely, but the subscriber testified that, shortly before and after the time of the robbery, the Sprint number in question received eight calls from Goree's number and made three calls to that number.

In addition, there was evidence that, on the night of the robbery, the Sprint number dialed or received calls from five other numbers. A New York City Department of Corrections investigator thereafter testified that, during defendant's incarceration while awaiting trial on the instant charges, he called those same five numbers 1,371 times, 48 times, 31 times, 58 times and 103 times, respectively. The investigator also testified that the date of birth associated with defendant's Department of Corrections identification number was the same as that included in the Sprint subscriber information.

The jury acquitted defendant of first-degree robbery and burglary, and grand larceny, but convicted him of second-degree robbery and burglary. On defendant's appeal, the Appellate Division affirmed, concluding that the subscriber information—which it called "pedigree information"—"did not constitute assertions of fact" but was "properly admitted as circumstantial evidence of defendant's identity as the purchaser of the phone," i.e., "that the declarant was, in all likelihood, defendant" (128 A.D.3d 424, 425, 9 N.Y.S.3d 30 [1st Dept.2015] ). The Court explained that, "[a]lthough the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible" (id. at 425, 9 N.Y.S.3d 30 ).

A Judge of this Court granted defendant leave to appeal (25 N.Y.3d 1205, 16 N.Y.S.3d 527, 37 N.E.3d 1170 [2015] ).

II.

As a threshold matter, we reject defendant's argument that the Appellate Division exceeded its authority under CPL 470.15(1), which "bars that court from affirming a judgment, sentence or order on a ground not decided adversely to the [defendant] by the trial court" (People v. Concepcion, 17 N.Y.3d 192, 195, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ; see People v. LaFontaine, 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998] ). Recently, in People v. Nicholson , 26 N.Y.3d 813, 28 N.Y.S.3d 663, 48 N.E.3d 944 (2016), this Court cautioned against "a flawed and overly narrow construction of the statutory limits of 470.15(1) as applied to the Appellate Division's review of the trial court's evidentiary ruling[s]" (id. at 825, 28 N.Y.S.3d 663, 48 N.E.3d 944 ), particularly where the "Appellate Division [does not] render[ ] a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant's favor—the type of appellate overreaching prohibited by CPL 470.15(1) —[but affirms an] evidentiary ruling on the ground relied on by the trial court" (id. at 825–826, 28 N.Y.S.3d 663, 48 N.E.3d 944 [citation omitted] ). We conclude that, contrary to defendant's contention, the Appellate Division did not rule that the subscriber information was admissible based upon a ground that was different from that on which the trial court relied. Rather, both courts ultimately concluded that the subscriber information was not hearsay because it was not " ‘offered for the truth of the fact[s] asserted in the statement’ " ( People v. Goldstein, 6 N.Y.3d 119, 127, 810 N.Y.S.2d 100, 843 N.E.2d 727 [2005], cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834 [2006], quoting People v. Romero, 78 N.Y.2d 355, 361, 575 N.Y.S.2d 802, 581 N.E.2d 1048 [1991] ) and, thus, the evidence was independently admissible. Under these circumstances, the Appellate Division did not exceed its authority under section 470.15(1) and there is no LaFontaine/Concepcion bar to our review.

III.

Turning to the merits, we agree with the courts below that the subscriber information was properly admitted for a nonhearsay purpose other than simply completing the narrative. Therefore, defendant's argument that the information would not be admissible under the business records exception—while technically correct because the subscriber was not under a duty to report his or her "pedigree" information correctly when activating the prepaid cell phone accounts—is misplaced.

CPLR 4518(a)^* sets forth the business records exception to the hearsay rule:

"Any writing or record, whether in the form of an entry in a book or otherwise,

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