Opinion
No. 56 SSM 56.
Decided January 12, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered March 31, 2009. The Appellate Division affirmed a judgment of the Supreme Court, Queens County (Douglas S. Wong, J.), which had convicted defendant, upon a jury verdict, of grand larceny in the fourth degree and scheme to defraud in the first degree.
People v Ramos, 60 AD3d 1091, reversed.
Legal Aid Society, New York City ( Jonathan Garelick and Steven Banks of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens ( Daniel Bresnahan of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be reversed and a new trial ordered on the charges of scheme to defraud in the first degree and petit larceny, and the present indictment otherwise dismissed without prejudice to an application by the People, if they be so advised, for leave to resubmit the charge of grand larceny in the fourth degree to another grand jury ( see People v Steadman, 82 NY2d 1; People v Mayo, 48 NY2d 245, 253).
The trial court erred when it admitted hearsay evidence without a proper foundation (CPLR 4518 [a]). Even assuming some documents may be admitted as business records without foundation testimony ( see People v Kennedy, 68 NY2d 569, 577 n 4 [1986]), the record at issue in this case was not such a document. Nothing on its face indicates that it "was made in the regular course of any business and that it was the regular course of such business to make it" (CPLR 4518 [a]). Nor can the error be deemed harmless in the circumstances of this case.
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.