Opinion
No. 2015BX000377.
07-30-2015
The PEOPLE of the State of New York, v. Anthony WILLIAMS, Defendant.
Robert T. Johnson, District Attorney, Bronx County by Paige Wallace, Assistant District Attorney, for the People. The Bronx Defenders by Linda B. Evarts, for Defendant.
Robert T. Johnson, District Attorney, Bronx County by Paige Wallace, Assistant District Attorney, for the People.
The Bronx Defenders by Linda B. Evarts, for Defendant.
ARMANDO MONTANO, J.
The motion by the People for an order, pursuant to CPLR 2221(d), granting leave to reargue this court's February 20, 2015 oral decision finding that the complaint was not converted to an information, is hereby granted. Upon reargument, this court adheres to its prior decision.
Defendant is charged with four counts of Falsely Reporting an Incident in the Third Degree (PL §§ 240.50[1], [2], and [3][a] ) and Criminal Impersonation in the Second Degree (PL § 190.25[3] ).
According to the accusatory instrument, the deponent, Officer Brian Kovarik, reviewed official records of the New York City Police Department ("NYPD"), which are made in the regular course of business and recorded within a reasonable time after an occurrence. A review of said records revealed that on or about January 3, 2015 at approximately 7:26 PM, 7:36 PM, 8:28 PM, and 9:18 PM at the vicinity of Webster Avenue and East Tremont Avenue in Bronx County, defendant allegedly made four telephone calls to 911 where he identified himself as a plain clothes officer in need of assistance. Officer Kovarik along with additional NYPD units responded to each of the calls. Upon investigation, Officer Kovarik concluded that the reported incidents did not occur. The accusatory instrument further alleges that defendant admitted to making the calls. After conducting a search of NYPD records, Officer Kovarik learned that defendant had never been employed by the NYPD.
Defendant was arraigned on January 4, 2015 and released on his own recognizance. The case was adjourned to February 20, 2015 for conversion. On January 29, 2015, the People filed with the court and served on defense counsel a superseding information and a statement of readiness.
On February 20, 2015, the People stated that they were ready. Defense counsel made an oral application and argued that the accusatory instrument remained unconverted. Defense counsel analogized the instant case to a VTL § 511 case where the People are required to file a Department of Motor Vehicles Abstract of Driving Record in order to convert the complaint. Similarly here, since the deponent is relying upon official NYPD records of which he has no personal knowledge, defense counsel asserted that these records need to be provided. In response, the People maintained their readiness and argued that such records were not required for purposes of conversion. This court disagreed with the People and held that the People were required to provide either the original written records or the transcripts of the 911 calls for purposes of conversion. To date, the People have failed to provide the pertinent records.
The People argue that this court erred in ruling that the instant accusatory instrument was not converted. Citing People v. Casey, 95 N.Y.2d 354 (2000), the People aver that documents referenced in a complaint need not be attached if the elements of a hearsay exception are made out in the complaint itself. The People refer to the accusatory instrument which reads in pertinent part that:
Deponent states that he has reviewed the official records of the New York City Police Department, which are made in the regular course of business and recorded within a reasonable time after an event or occurrence. [A]s a New York City Police Department Police Officer, he has access to the records of the New York City Police Department.
The People allege that the accusatory instrument clearly states that Officer Kovarik is a custodian of the records of the NYPD with personal knowledge of the contents of the 911 calls at issue. The accusatory instrument further states that Officer Kovarik responded to each of the 911 calls. Therefore, the People contend that Officer Kovarik is capable of laying the requisite foundation for the business records exception to the hearsay rule to properly convert the complaint.
In opposition, defendant argues that the instant motion should be denied outright as untimely. Notwithstanding the untimeliness of the motion, defendant argues that this court correctly determined that Officer Kovarik's allegations regarding the content of the 911 calls is hearsay. Consequently, defendant maintains that the accusatory instrument remains unconverted to the extent that it relies upon the content of the 911 calls. Defendant also notes that the People, without citing any authority, assume that the 911 calls would be admissible at trial under the business records exception to the hearsay rule. Defendant argues that the People have failed to demonstrate that defendant had a business duty to report the occurrences and as such, the business records exception is inapplicable herein. Furthermore, assuming arguendo that the 911 calls do qualify as business records, defendant asserts that this only means that the 911 calls are admissible, not that Officer Kovarik may testify as to its contents.
With respect to the People's reliance on Casey, supra, defendant argues that the People have misstated both the law and facts of the case. Defendant avers that the Casey Court never addressed the issue of whether the elements of an offense charged in an accusatory instrument may be established by hearsay statements of an individual testifying about the contents of a record. Rather, the court held that the failure to annex the order of protection to the accusatory instrument did not require reversal as the supporting deposition of the complaining witness demonstrated that she had firsthand knowledge that the order of protection had been granted. As such, the complaining witness' knowledge did not rely on the contents of the order of protection.
In reply, the People reiterate that the instant motion is timely. The People also assert that "the accusatory instrument does not [rely] upon the content of the 911 calls to demonstrate the truth of the content of the calls, but rather, refers to these calls to demonstrate that these calls were made and that certain statement[s] were made during the calls. However, the fact that these calls were made and that certain statements were made during the calls is admissible pursuant to the business record exception to hearsay." Reply Affirmation of ADA Paige Wallace, at 6.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." CPLR 2221(d). "A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.' " Mangine v. Keller, 182 A.D.2d 476, 477 (1st Dept.1992), quoting Foley v. Roche, 68 A.D.2d 558, 567 (1st Dept.1979).
At the outset, this court finds that the instant motion is untimely. A motion for leave to reargue must be made "within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." CPLR 2221(d)(3). The People contend that their time to move for reargument was not triggered as defendant never served them with a copy of the decision with notice of entry. Defendant notes that in arguing that the instant motion is timely, the People rely on civil cases, which are inapposite. Defendant asserts that the First Department has held that in the criminal context, there is no requirement to serve a written order notice of entry as a prerequisite to appeal where the court has ruled orally and thus the order has been entered on the record. People v. Silva, 122 A.D.2d 750 (1st Dept.1986).
Although "the CPLR has no application to criminal actions and proceedings" (Id. at 750 ), several courts have held that that the CPLR may be applied in a criminal action where the CPL is silent on the issue at hand. People v. Ramrup, 47 Misc.3d 1223(A) (Sup Ct, Bronx County 2015) ; People v. Davis, 169 Misc.2d 977 (County Ct, Westchester County 1996) ; People v. Radtke, 153 Misc.2d 554 (Sup Ct, Queens County 1992).
In People v. Walters, 46 Misc.3d 295 (Crim Ct, Bronx County 2014), the defendant sought leave to renew and reargue the court's oral decision seven months after its issuance. The defendant argued that the motion was timely since notice of entry had not been filed. The court expressed concerns regarding "defendant's position and its general [e]ffect on criminal practice. Id. at 297. The court noted the procedural differences between civil practice and criminal practice and held that "when dealing with an oral order in a criminal matter that renders a final order or decision, the renewal and/or reargument time should start from the point the decision and order is made not when reduced to writing." Id. at 298.
This court agrees with the Walters Court, and similarly holds that where a criminal court's oral decision is rendered in open court on the record, the time to move for leave to reargue begins on the date the decision was issued. It bears emphasizing that notice of entry is a creature of civil practice, not criminal practice. In a criminal action, decisions are often made orally from the bench in open court with no requirement for the filing of notice of entry. Given the procedural differences between civil practice and criminal practice, requiring the service of a written copy of an oral decision with notice of entry in a criminal action to trigger the time to move for leave to reargue would be nonsensical. In theory, the time to move for rearguement would never be triggered and consequently a motion for rearugment could be made even years after the issuance of the decision.
Notice of entry is a statement which indicates that the enclosed order or judgment has been filed and entered in the County Clerk's office on a particular date. Nagin v. Long Island Sav. Bank, 94 A.D.2d 710 (2d Dept.1983).
Pursuant to CPLR 2211, a motion on notice is made when it is served, not filed with the court. The affidavit of service indicates that the instant motion was served 54 days after the issuance of this court's oral decision on April 15, 2015, beyond the 30 days authorized by CPLR 2221(d)(3). Even though the instant motion is untimely, this court will consider it and decide it on the merits since "regardless of statutory time limits concerning motions to reargue, every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action." Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20 (1986) ; Profita v. Diaz, 100 AD3d 481 (1st Dept.2012). As such, the People's request for leave to reargue this court's February 20, 2015 oral decision is granted.
Although defendant does not explicitly argue that the accusatory instrument is facially insufficient, his assertions that the complaint relies upon hearsay are tantamount to arguing that the complaint is facially insufficient. In a misdemeanor prosecution, a defendant has a statutory right to be prosecuted by a misdemeanor information. CPL § 170.65(1). Unless a defendant waives prosecution by information, the People must convert a misdemeanor complaint to an information. "A misdemeanor complaint is converted into an information when sufficient supporting depositions are filed that remove all hearsay from the complaint and thereby establish a prima facie case against the defendant." People v. Flores, 189 Misc.2d 665, 666 (Crim Ct, Queens County 2001). The requirement that there be non-hearsay allegations in support of each and every element of the offense charged can be satisfied where the allegation would be admissible as an exception to the hearsay rule. People v.. Casey, 95 N.Y.2d 354 (2000) ; People v. Rivera, 45 Misc.3d 386 (Crim Ct, N.Y. County 2014). "Requiring that a nonhearsay accusation be filed as a condition precedent is a minimal but significant indication that the prosecution is legitimate. It reduces the possibility that one could be unjustly forced to stand trial by an overzealous or negligent prosecutor based on an indirect, incomplete, or inadequately investigated accusation." People v. Phillipe, 142 Misc.2d 574, 578 (Crim Ct, Kings County 1989).
To secure a conviction under PL §§ 240.50(1), (2), or (3)(a), the People must establish that the defendant conveyed information knowing such information to be false. Penal Law section 190.25(3) requires a showing that a defendant "falsely expresse[d] by his words or actions that he is a public servant." In their moving papers, the People assert that "the superseding information states that the defendant told 911 operators, on four occasions, that he was a police officer in need of assistance" and a search of NYPD records revealed that defendant was not a police officer. The People then assert that these "facts establish that the defendant knew the information he provided to the 911 operator was false or baseless.' " Affirmation of ADA Paige Wallace, at 12.
"Out-of-court statements introduced to prove the truth of the matters they assert are hearsay. They may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable." People v. Brensic, 70 N.Y.2d 9, 14 (1987). However, "[w]here the mere fact that a statement was made, as distinguished from its truth or falsity, is relevant upon trial, evidence that such statement was made is original evidence, not hearsay. In such a case, the hearsay rule
has no application, for the statement is not offered as a testimonial assertion." (Emphasis added). DeLucca v. Ricci, 194 A.D.2d 457, 458 (1st Dept.1993)quoting Richardson on Evidence § 203 (Prince 10th ed.); see also, People v. Felder, 37 N.Y.2d 779 (1975) ; People v. Davis, 58 N.Y.2d 1102 (1983).
It is evident to this court that the People are seeking to introduce the contents of the 911 calls, not only to demonstrate that such calls were made, but rather to establish the falsity of the information contained in those calls. Therefore, this court holds that the contents of the 911 calls are hearsay.
The business records exception to the hearsay rule, codified in CPLR 4518 (made applicable to criminal actions pursuant to CPL § 60.10 ), reads in pertinent part that "[a]ny writing or record made as a memorandum or record of any event, shall be admissible in evidence in proof of that event, if the judge finds that it was made in the regular course of any business." CPLR 4518(a). "The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise." People v. Kennedy, 68 N.Y.2d 569, 579 (1986).
In addition to the foundational requirements set forth in CPLR 4518(a) , the proponent of the business record must show that the person who made the record had actual knowledge of the event recorded or had received the information from someone within the business who had actual knowledge and had a business duty to report the event to the author of the record. Johnson v. Lutz, 253 N.Y. 124 (1930) ; Kennedy, 68 N.Y.2d 569.
In order introduce a record pursuant to CPLR 4518(a), the proponent of the record must satisfy the following foundational requirements: 1) the record must have been made in the regular course of business; 2) it must be the regular course of such business to make the record; 3) the record must have been made at the time of the act recorded or a reasonable time thereafter.
In Matter of Leon R.R., 48 N.Y.2d 117 (1979), the Court of Appeals found the wholesale admission of a child's entire case file, replete with inadmissible hearsay, maintained by the St. Lawrence County Department of Social Services as a business record required reversal in a termination of parental rights proceeding. The Court of Appeals held that "[e]ach participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception." Id. at 122. The Court of Appeals further explained that:
[T]he mere fact that the recording of third-party statements by the caseworker might be routine, imports no guarantee of the truth, or even reliability, of those statements. To construe these statements as admissible simply because the caseworker is under a business duty to record would be to open the floodgates for the introduction of random, irresponsible material beyond the reach of the usual tests for accuracy cross-examination and impeachment of the declarant. Unless some other hearsay exception is available admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event, or condition and he is under a business duty to report it to the entrant. Id. at 123.
CPLR 4518 is silent as to who must testify as to these foundational requirements. Customarily, business records are introduced through the testimony of a custodian or an employee of the business. Id. at 577. The proponent of the business record does not have to demonstrate that the actual person who prepared the document is unavailable. Instead, all that is required is a witness who has sufficient knowledge of the record-keeping practices and procedures of the business. People v. Rawlins, 37 AD3d 183 (1st Dept.2007) ; People v. Ferone, 136 A.D.2d 282 (2d Dept.1988).
Although CPLR 4518 obviates the need of having the actual person who created the business record appear in court to introduce said record, the business records exception does not "excuse production of the records in favor of a mere statement by a custodian, who lacks personal knowledge as to the supposed contents of the records." People v. Tisdale, 18 Misc.3d 1125(A), at *4 (Crim Ct, Kings County 2008). As the Hon. John H. Wilson wrote in People v. Ross, 12 Misc.3d 755, 764 (Crim Ct, Kings County 2006), "[t]his court has found no instance where a deponent indicates that he or she is the custodian of a business record, and asked a court to accept his or her statements regarding the nature of that document, without also presenting the business record itself for the court's review." See also, People v. Olivero, 27 Misc.3d 1218(A) (Crim Ct, N.Y. County 2010) ; Tisdale, 18 Misc.3d 1125(A).
This court notes that the instant accusatory instrument fails to indicate what records Officer Kovarik relied upon to aver as to the contents of the 911 calls. Although the People assert throughout their papers that Officer Kovarik listened to the actual 911 calls, Officer Kovarik, as the deponent, makes no such allegation to that effect in the accusatory instrument.
Regardless of the People's representations in their papers, there is no indication that Officer Kovarik qualifies as a custodian of the records or is an employee with knowledge of the record-keeping practices and procedures of the NYPD. Rather, the accusatory instrument only alleges that the deponent is an NYPD officer who had access to NYPD records.
Moreover, contrary to the People's arguments, Officer Kovarik does not have actual knowledge of the events recorded. The allegation that he reviewed unspecified NYPD records, does not satisfy the requirement of having actual knowledge of the events recorded. This court finds that the People's reliance on Casey, supra, to support their contention that Officer Kovarik has personal knowledge of the contents of the 911 calls is misplaced. The People argue that "Officer Kovarik's averments as to the contents of the 911 calls are the result of his firsthand personal experience in listening to the calls, just as in Casey, the complainant's averments as to the existence and content of the Order of Protection came from her firsthand observation of the Order of Protection." Affirmation of ADA Paige Wallace, at 17.
In Casey, the defendant appealed the order of the Appellate Term affirming his conviction of criminal contempt in the second degree for violating a Temporary Order of Protection. Before the Appellate Term, the defendant raised for the first time, inter alia, that the information was jurisdictionally defective because the Temporary Order of Protection was not attached to the information. In affirming the defendant's conviction, the Court of Appeals held that under the particular circumstances of the case, the failure to annex the Temporary Order of Protection did not require reversal.
The Casey Court did not hold that the complainant's averments regarding the existence and contents of the Order of Protection derived from her observation of the actual Order of Protection. Rather, under the particular circumstances of the case, the Court of Appeals determined that the complainant's supporting deposition allowed the inference that she had firsthand knowledge of the order. The Court of Appeals noted that the complaining witness' supporting deposition unequivocally stated that a Temporary Order of Protection had been issued, was in effect, and she personally observed the conduct attributed to the defendant that violated the terms of the Temporary Order of Protection.
In relying upon the business records exception, the People must produce the records Officer Kovarik reviewed for the court's examination. Only after receipt and review of the relevant documents can this court determine whether the documents fall under the business records exception to the hearsay rule. Without submitting the actual records relied upon by the deponent, Officer Kovarik's averments as to the contents of the records remain inadmissible hearsay.
This court further finds that the instant accusatory instrument is deficient in two additional respects. First, the accusatory instrument only alleges that Officer Kovarik reviewed official records of the NYPD which revealed that several calls were made indicating that an officer was in need of assistance. As stated above, the accusatory instrument fails to specify what records Officer Kovarik reviewed. How can this court accept the People's representations that Officer Kovarik reviewed official NYPD records when the court is not told what records were reviewed by the officer?
If Officer Kovarik did in fact listen to the 911 calls, then his attestations as to what he personally heard when listening to the tapes would not constitute hearsay. As a result, the People would not need to rely upon an exception to the hearsay rule. Statements in an accusatory instrument attributed to an officer describing what he or she heard on an audio recording are analogous to statements attributed to an officer describing what he or she saw on a video tape. Several courts have held that a deponent's observations based upon a review of a video tape are sufficient. See, People v. West, 41 Misc.3d 542 (Crim Ct, Bronx County 2013) ; People v. Lambert, 2002 WL 1769931 (Crim Ct, N.Y. County 2002) ; People v. Ham, 43 Misc.3d 1227(A) (Crim Ct, Kings County 2014) ; People v. Giarraputo, 37 Misc.3d 486 (Crim Ct, Richmond County 2012). This court sees no difference between a deponent describing what he or she saw on a video tape versus what he or she heard on an audio recording. Yet, as stated above, there is no indication that Officer Kovarik actually listened to the 911 tapes. As currently drafted, the accusatory instrument is facially insufficient to the extent that the complaint fails to specify the source of the deponent's knowledge.
Second, the accusatory instrument alleges that Officer Kovarik, along with additional NYPD units, responded to the 911 calls. After an investigation, Officer Kovarik determined that the incidents described in the 911 calls did not occur. This court finds the officer's allegations that the incidents did not occur amount to impermissible conclusory allegations. The complaint fails to allege any basis for the deponent's belief that the reported incidents as to a police officer in need of assistance did not occur. There are no facts alleged of an "evidentiary character" from which this court could reasonably infer that the reported incidents did not occur. Absent any allegations indicating who conducted the investigation and what the investigation entailed which led Officer Kovarik to believe that the reported incidents did not occur, the accusatory instrument is facially insufficient.
Based upon this court's calculations, 101 days have accrued since the date of defendant's arraignment, January 4, 2015, to the date the instant motion was served, April 15, 2015, in which the complaint remained unconverted.
Accordingly, the motion by the People for an order, pursuant to CPLR 2221(d), granting leave to reargue this court's February 20, 2015 decision is granted. Upon reargument, this court adheres to its prior decision.
This constitutes the decision and order of this court.