The People, Respondent,v.Robert Patterson, Appellant.BriefN.Y.Nov 15, 2016To be argued by: MARIANNE STRACQUADANIO (15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT PATTERSON, Defendant-Appellant. BRIEF FOR RESPONDENT DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-6100 email@example.com NANCY KILLIAN MARIANNE STRACQUADANIO Assistant District Attorneys Of Counsel PRINTED ON RECYCLED PAPER TABLE OF CONTENTS RESPONDENT’S BRIEF .................................................................................... 1 STATEMENT ....................................................................................................... 1 QUESTION PRESENTED ................................................................................. 2 THE FACTS ......................................................................................................... 2 Introduction ........................................................................................................................ 2 The Court’s Pre-trial Rulings ............................................................................................. 3 The Trial .............................................................................................................................. 5 The Appellate Division Decision ................................................................................... 13 ARGUMENT ...................................................................................................... 14 POINT: THE TRIAL COURT PROPERLY ADMITTED SUBSCRIBER INFORMATION FROM PRE-PAID PHONE RECORDS, AND, IN ANY EVENT, ANY ALLEGEDLY IMPROPER HEARSAY WAS HARMLESS. ...... 14 A. Contrary to defendant’s claim, this case presents no LaFontaine/Concepcion problem, since the Appellate Division affirmed on a ground that was litigated below and decided adversely to defendant. ................................................................ 15 B. The court properly admitted the subscriber information as non-hearsay located within a business record, and in any event, any error in its admission was harmless .......................................................................................................................... 21 C. As a general matter of policy, the admission into evidence of subscriber information connected with pre-paid phone accounts serves an important truth- seeking function ............................................................................................................. 35 CONCLUSION................................................................................................... 40 PRINTING SPECIFICATIONS STATEMENT ............................................. 41 ii TABLE OF AUTHORITIES State Cases Johnson v. Lutz, 253 N.Y. 124 (1930) ............................................................................ passim Kelly v. Wasserman, 5 N.Y.2d 425 (1959) ...................................................................... passim Matter of Leon RR, 48 N.Y.2d 117 (1979) .................................................................... passim Pencom Systems, Inc. v. Shapiro, 237 A.D.2d 144 (1st Dept. 1997) ..................................... 33 People v. Concepcion, 17 N.Y.3d 192 (2011) ....................................................... 15, 16, 18, 19 People v. Crimmins, 36 N.Y.2d 230 (1975) ........................................................................... 35 People v. Dozier, 94 A.D.3d 1226 (3d Dept. 2012) ............................................................. 37 People v. Huertas, 75 N.Y.2d 487 (1990) .............................................................................. 23 People v. Kennedy, 68 N.Y.2d 569 (2012) ........................................................................ 26, 31 People v. LaFontaine, 92 N.Y.2d 470 (1998) ................................................................... 16, 18 People v. Madison, 106 A.D.3d 1490 (4th Dept. 2013) ....................................................... 38 People v. Matthews, 16 A.D.3d 135 (1st Dept. 2005) ........................................................... 33 People v. McKissick, 281 A.D.2d 212 (1st Dept. 2001) ....................................................... 33 People v. Nichol, 121 A.D.3d 1174 (3d Dept. 2014) ............................................................ 37 People v. Nicholson, _N.Y.3d_, 2016 N.Y. Slip Op 01206 (February 18, 2016) ........ passim People v. Ortega, 15 N.Y.3d 610 (2010) ............................................................. 26, 31, 32, 33 People v. Patterson, 128 A.D.3d 424 (1st Dept. 2015) ...................................................... 2, 14 People v. Russell, 71 N.Y.2d 1016 (1988) .............................................................................. 24 People v. Santiago, 52 N.Y.2d 865 (1981) .............................................................................. 24 People v. Thompson, 79 A.D.3d 1269 (3d Dept. 2010) ........................................................ 37 iii Other Cases Commonwealth of Pennsylvania. v. Cash, 2015 WL 6468686 (Pa. Commw. Ct. 2015) ........ 36 S.E.C. v. Conradt, 947 F. Supp. 2d 406 (S.D.N.Y. 2013) .................................................. 36 State v. Butler, 296 Conn. 62, 67 (Sup. Ct. Conn. 2010) .................................................... 36 United States v. Byers, 649 F.3d 197, 203-04 (4th Cir. 2011) .............................................. 35 United States v. Martinez, 2013 WL 563158 (11th Cir. 2013) ............................................. 36 United States v. Sierra, 2008 WL 4411330 (5th Cir. 2008) .................................................. 36 Statutes CPL § 470.05 ......................................................................................................................... 24 CPL § 470.15 ............................................................................................................. 15, 17, 18 CPLR § 4518 .................................................................................................................. passim Section 374-A of the Civil Practice Act ....................................................................... 27, 28 COURT OF APPEALS STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT PATTERSON, Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Eugene M. Fahey, Associate Judge of the Court of Appeals, granted July 13, 2015, Robert Patterson appeals from an order of the Appellate Division, First Department entered on May 5, 2015, affirming the judgment of the Supreme Court, Bronx County (Clancy, J.), rendered April 4, 2012. By that judgment, defendant was convicted, after a jury trial, of Robbery in the Second Degree and Burglary in the Second Degree under Indictment Number 4686/2007, and sentenced to concurrent determinate terms of ten years of incarceration for each conviction, and five years of post-release supervision. Defendant is incarcerated pursuant to this judgment, as well as other judgments. 2 QUESTION PRESENTED Whether the trial court properly received into evidence subscriber information from pre-paid cell phone account records. The trial court ultimately held that the records could be admitted under the business records exception to the hearsay rule, and that the subscriber information displayed on the records could be admitted as circumstantial evidence of defendant’s involvement in the crime (see A.224-226; see also post-trial decision at A.578-583). The Appellate Division affirmed on this ground, finding that the subscriber information did not constitute assertions of fact, but was instead, properly admitted as circumstantial evidence of “defendant’s identity as the purchaser of the phone.” People v. Patterson, 128 A.D.3d 424, 425 (1st Dept. 2015). THE FACTS Introduction On September 1, 2007, defendant and two accomplices robbed and burglarized Michael Johnson. One of defendant’s accomplices, Daichele Goree, had befriended Mr. Johnson previously, when together they drank, smoked, and had sex. On September 1, 2007, Mr. Johnson believed that he and Goree would repeat their rendezvous at his apartment, except Goree excused herself on several occasions to make phone calls from her pre-paid cell phone. Soon thereafter, defendant and his other accomplice, Desmond Cullins, entered Mr. Johnson’s apartment, threatened him with a pistol, and took $800 and a chain and pendant worth several thousand dollars. 3 After Mr. Johnson supplied police detectives with Goree’s phone number, they subpoenaed her phone records, which revealed that in the minutes preceding the burglary, she had been calling and receiving calls from a pre-paid “boost” cell phone number that was registered with defendant’s address and alias. After this, the police focused their investigation on defendant and conducted a lineup, during which Mr. Johnson positively identified him as one of the intruders.1 The Court’s Pre-trial Rulings Prior to trial, the court convened for a hearing to consider the appointment of an eyewitness identification expert, although later, defense counsel withdrew his application because there was corroborating evidence in addition to the eyewitness identification (A.168). Defense counsel also asked for severance of defendant’s burglary and robbery cases—which had been consolidated in a decision dated January 27, 2011—and later amended his application so that only defendant’s burglary case would be severed, which the Court granted (A.159-163, 168-169, 196). Defense counsel moved in limine to preclude the introduction of records and subscriber information from defendant’s pre-paid cell phone account (A.170).2 Ultimately, the court decided to admit them (A.219).3 Specifically, the court noted: 1 During the course of the investigation, police detectives also discovered that defendant was a suspect in several other robberies, and defendant’s crimes were classified as a pattern. Defendant was indicted along with his accomplice under Indictment Number 4686/2007 for the burglary, and was also separately indicted for the pattern robberies. 2 Later, defense counsel made the same application with regards to Goree’s pre-paid cell phone records (see A.386-387). 4 [T]he records that I’ve examined before me that are being proffered are business records to the extent that the witness, I believe, will testify that all of the information contained in them is made in the regular course of their business, it’s Sprint’s regular course of business to make and to keep these records. It’s my understanding based on the oral argument that the Sprint representative would have to say that when a caller calls to activate one of these boost phones, and I think an explanation of what that is will be needed for the jury, the caller is asked to give information about who they are, their address, their date of birth and any contact information, and the Sprint representative would say, as they’ve said in their written documents, that they do not verify that information. There is no particular form of I.D. that’s sent to them or given to them, and so in that way they disclaim any reliability of the information that’s given to them. Nonetheless, it’s my understanding a Sprint representative would say that it’s their business duty to ask for that information, to take that information, but that if a caller refuses it or gives any other information, that is the information they take and then make as part of their business records. I recognize that there is no business duty from the caller to give accurate or reliable information. I believe this record is being admitted for the purpose of showing that this is the information that was given, the fact that information was given at a time that well preceded the crime itself which occurred, I believe, in September, on September 1, the phone was activated on June 6 of 2007, and the People are seeking to argue that it isn’t just a coincidence that a victim of this crime identifies a defendant, this defendant from a lineup, and they want to argue the coincidence of there having been a call made to this particular cell phone for which somebody gave the information Darnell Patterson and then that this defendant bears that tattoo. 4 3 To be clear, the parties discussed the admission of the evidence at multiple points throughout the hearing, as the court fine-tuned its ruling throughout the proceedings (see, e.g., A.171-182; A.185-188; A.198-212). The court finally reached its final ruling, which is excerpted above, on the first day of voir dire, and did not revisit the issue again until trial, when it adhered to its decision and also applied it to Goree’s records (see, e.g., A.386-389, 397-401, 436-437). 4 Defendant had a tattoo on his hand with the name “Darnell,” and the court later determined that he could be compelled to reveal it, if relevant (A.203), and he ultimately did so. (see Respondent’s 5 So, for the purposes of those inferences, arguing the coincidences and circumstantial evidence, I am permitting it, and, again, we’ll explain it in more detail in that written decision and of course you have your exception to that. (A.224-226). In a written order entered April 10, 2014, almost two-and-one-half years after trial, the court noted that the subscriber information “was not being admitted for its truth, but for the fact of the occurrence itself, that is, a caller to Sprint activating the cell phone and giving a particular name, date of birth and address, regardless of whether it was truthful.” (A.582). The Trial The People’s Case Michael Johnson met his female acquaintance, Goree (who was known to defendant as “Michelle”) on the street, where she called him a “baller.” On the day that they met, he was wearing a medallion chain set that was worth a couple of thousand dollars. Goree and Mr. Johnson went back to his house, drank, smoked, had sex, and exchanged cell phone numbers (A.241-243). Mr. Johnson supported himself through a Metlife annuity of $2500 per month from a settlement of a lead paint poisoning lawsuit, which is how he paid for his medallion chain set. He experienced no effects of the lead paint poisoning besides having “a slight stutter problem” when excited (A.236-237, 241-242). He had Appendix (hereinafter “RA”) at RA.1. 6 previously been arrested for selling drugs, turnstile jumping, and possession of a knife, but had no criminal history otherwise (A.238-240). Mr. Johnson invited Goree over his apartment on the night of September 1, 2007, because his daughter had just been born and he wanted to “have fun one last time.” Goree called Mr. Johnson shortly after nine when she arrived at the downstairs of his building, and he let her in (A.240-245). His apartment was on the second floor, and he opened and unlocked a series of doors in order to bring Goree back into his apartment, and he locked the doors behind them “to avoid getting caught” by his daughter and her mother (A.245-247). He was wearing the same medallion he wore the day he met her (A.255). After they entered his bedroom, Goree received a series of phone calls. She told Mr. Johnson that the calls were from her mother and other family members, and each time she answered a phone call, she would walk out of the room and into the bathroom. He did not see where she went when she was on the phone, because he was giving her privacy (A.247, 250). There were three or four calls in total, and Mr. Johnson did not hear her conversations, because music was playing in his room (A.247-248). After the fourth call, Goree came in the room from the bathroom. As he began to unbuckle her belt, the door swung open, and defendant and his accomplice, Cullins, whom Mr. Johnson referred to as “the fat one,” entered the room. They had bandanas on their faces and pistols in their hands (A.251-253, 328-330). Defendant 7 cocked his gun and then demanded that he take off the chain. The first thing Mr. Johnson tried to do after defendant started speaking was to see if he could recognize him, and so Mr. Johnson looked at his facial features. From a mere distance of five feet, he looked at his “forehead, the eyebrows, bridge of the nose, little bit of nostrils, top of the ears,” and the “subtle things [he] could remember in case [he] bumped into him in the street....” Upon looking at defendant’s eyes, Mr. Johnson sensed that defendant was willing to shoot him, and so he took off his chain immediately, not wasting any time (A.251-254). After Mr. Johnson took off his jewelry, defendant and Cullins instructed him to get down on the ground, and he lay on his stomach. Cullins taped Mr. Johnson’s wrists behind his arms, his mouth, and ankles, with tape that Goree retrieved from his drawer (A.263-264, 277-278). Goree did not say anything during the incident, and sat on Mr. Johnson’s bed, except when she got up to retrieve the tape to tie up Mr. Johnson (A.255, 259-260, 263) Defendant and Cullins rifled through his drawers, and asked him for money and drugs (A.260-261). Mr. Johnson kept saying to them that his daughter had been born only six days prior, and that they could take anything they wanted. He asked them to let him live. In response, defendant and Cullins told him that if he wanted to live, he “would shut the fuck up and [he] might live through this.” (A.265). After they had rummaged through most of the room, Mr. Johnson could see that they were not satisfied by what they were finding, and so Mr. Johnson began 8 speaking through his taped mouth, until Cullins let the tape down so Mr. Johnson could speak. Mr. Johnson told them about his annuity, and with the help of Cullins, he got up, and began to tell them about his Metlife contract, which he kept under his mattress (A.267-268, 270). At this time, Mr. Johnson felt the cold steel of a gun to the back of his head, as defendant instructed him “not to play any games.” (A.270-271). Mr. Johnson directed defendant to the Metlife contract, and “explain[ed] to him what he was looking at” (A.268). He kept this contract with about $800 rent money, which was taken during the course of the burglary (A.263, 266-268, 270, 277). After telling them about the annuity, Mr. Johnson got back on the ground, and the tape was put back around his mouth. They continued to “look for anything that they could get.” Mr. Johnson heard defendant flip the mattress, knock over the nightstand and threaten to kill his pets (A.277-278). Cullins suggested that they leave, but defendant wanted to stay. After a few minutes, Cullins left. Defendant continued to search, and looked around in frustration, until in the end, he threw everything on top of Mr. Johnson, including clothes, a chair, and a coat, before leaving. Defendant left Mr. Johnson on the floor, while he was still bound, took Mr. Johnson’s keys, and locked him in. (A.279-280). Mr. Johnson did not know when Goree left the apartment. The whole incident, from when defendant and Cullins came in until they left, lasted approximately thirty minutes (A.280). By the end, the $800, the medallion chain set, earrings, a watch, and a leather coat were taken, among other items (see A.256, 263, 280, 357, 359). 9 After they left, Mr. Johnson waited for about five minutes, and then freed himself; the adhesive from the tape was loosened at this point (A.281). Mr. Johnson called his mother first, because she had the keys to all of his doors. He did not want to call the police, but his mother convinced him, and after he tried calling his daughter, he called 911 (A.282-284). Detective Daniel Boggiano of the Crime Scene Unit arrived at defendant’s apartment at approximately 12:30 a.m. on the morning of September 2, 2007, where his partner took photographs of the scene. The photographs depicted a broken door jamb and the piece of tape that was used to bind Mr. Johnson (A.231-234). Detective John Ferretti arrived at Mr. Johnson’s apartment between 11:00 and 11:30 at night on September 1, 2007. Mr. Johnson told Detective Ferretti, both at his apartment and at the police precinct later that night, that the intruders were black males, approximately six foot tall, with masks on, and red bandanas up to their noses. Mr. Johnson told Detective Ferretti that he thought they were young. (A.392-395). Mr. Johnson gave Detective Ferretti the phone number that he thought belonged to “Michelle,” 917 . At this point, it was not known whether Goree was an accomplice to the burglary (A.294, 394-395). Detective Ferretti called Goree on the phone number provided by Mr. Johnson. Goree stated that she did not know Mr. Johnson, and that she did not know what Detective Ferretti was talking about. Goree gave him a fake address and a fake name. On September 2, 2007, he subpoenaed phone records for the 917 10 number, because he knew Goree was in defendant’s apartment at the beginning of the robbery (A.395-396). Detective Ferretti learned that the name associated with that phone number was “Daichele Marrero,” who was also known as “Daichelle Goree.” (A.398). After looking at the phone records from Goree’s 917 phone number, Detective Ferretti subpoenaed the records from an additional three phone numbers, including the number 718 , which provided a lead (A.399-400). He learned that the name of the person that the 718 number was registered to was “Darnel Patterson,” with an address of Cedar Avenue, and a date of birth of 1986. (A.400-401)5. Ferretti continued his investigation by using numerous NYPD databases, and focused on defendant as a suspect, whose name, address, and date of birth corresponded to the Sprint/Nextel records (A.401, 410). Defendant was arrested after Ferretti conducted a lineup on November 8, 2007, at which Mr. Johnson identified defendant as one of his assailants (see A.301- 302, 404-409). According to Jose Rivera, an employee at Concourse Pawn Brokers, on September 1, 2007, a chain and a charm were pawned by Daichele Goree, who dropped off the items in exchange for $500, and picked up the items by paying $535 (A.376-380). 5 The court gave a limiting instruction with regards to both the 718 and the 917 numbers that Det. Ferretti could reference the subscriber information only to explain his investigatory steps (see A.397- 398, 401). 11 Jeffrey Strohm, custodian of records for Sprint/Nextel established that People’s Exhibits Nine and Ten (see A.5-15), which were call detail records and direct Nextel records for phone number 718 , were records and subscriber information kept in the regular course of business for Sprint/Nextel. He confirmed that the subscriber information is a record made at or approximately at the time that a subscriber activates the phone, and that the call logs were recorded or cataloged at or around the time that calls are made. He also confirmed that the person that records such information has a business duty to record it fairly, accurately and completely. (A.444). The name, address, and birthdate associated with the account was Darnell Patterson, Cedar Avenue, Bronx, and 1986, respectively. (A.445-446). Regarding the subscriber information, Mr. Strohm stated: When one purchases a prepaid phone what he or she does is consult with a Sprint Customer Sales Agent, prepay for all their minutes meaning that everything is paid for upfront, they’ve negated the bill for monthly billing statement. If the customer chooses to provide their name and address that will be recorded in the subscriber information, but as I said earlier it’s not actually verified. (A.446). Regarding the call logs, the 718 number received calls from [Goree’s number at] 917 at 8:38, 8:52, 8:56, 9:02, 9:07, 9:16, 9:23, and 10:38 PM, and made outgoing calls to that number at 9:11, 9:25, and 9:26 PM on the night of the incident. Additionally, the 718 number dialed or received calls from 347 one time, 646 four times, 718 twelve times, 718- 12 six times, and 646 one time (A.449-451; see also A.13-16). Amy Lowe, an investigator at the New York City Department of Corrections, reviewed defendant’s call log from his incarceration at Riker’s Island. Defendant called the same five numbers from Riker’s Island as the 718 number had dialed on the night of the incident. While incarcerated, defendant called 347 a total of 1371 times, 646 a total of 48 times, 718 a total of 31 times, 718 a total of 58 times, and 646 a total of 103 times (A.467- 471). Roger Santos,6 a specialist for custodian of records for TMobile, explained that the 718 number, the account associated with the name Darnell Patterson, called 917 —which was registered to “Daichele Marrero”—three times between 9:20 and 10:40 p.m. on the night of the incident. (A.458, 463). People’s Exhibit Eleven, which contained subscriber information and call detail records for the number 917 , were records kept in the regular course of business for TMobile (see A.17-20). He confirmed that both the subscriber information and the call log were records made at or shortly after at the time the phone is activated and shortly after the time the calls are made. He also confirmed that the person that records such 6 Prior to calling Mr. Santos, defense counsel argued, for the first time, that the subscriber information in the TMobile records was inherently unreliable, as he had raised previously regarding the subscriber information in the Sprint records (A.386-387). The prosecutor responded that the TMobile records, unlike the Sprint records, did not have the disclaimer that the information was unverified, and so therefore, the information was reliable and could be admitted as a self- authenticated business record (A.387-388; see A.17 compared with A.5). The court ultimately ruled that the TMobile records and subscriber information were admissible (see A.436-437). 13 information has a business duty to record it fairly, accurately and completely. (A.455- 456). He believed that the phone was probably activated in person, at a store, although no identification would have been required to activate it (A.459). Defense counsel stipulated that Mr. Johnson’s phone number appeared on the subpoenaed 917 call records (A.460-461). In the middle of trial, defendant displayed his right hand to the jury, revealing that he had tattoo of the name “Darnell” on the top of his right hand (see RA.1). The Defense’s Case Officer Kenneth Doyle of the Bronx Anticrime Unit testified that he responded to the scene of the incident on September 1, 2007. He filled out a “scratch 61,” which is a scratch copy of a police complaint report, but he could no longer recall what he wrote on the form, where the form was, or the conversation that he had with Mr. Johnson (A.472-473). The Appellate Division Decision On May 5, 2015, the Appellate Division, First Department, unanimously affirmed defendant’s judgment of conviction. The First Department rejected defendant’s claim that the subscriber information was admitted for its truth. The court held that the subscriber information, which it described as “pedigree information,” did not constitute assertions of fact. The court held that the subscriber information was circumstantial evidence that the declarant was defendant, and that 14 “rather than being factual, the pedigree information was analogous to a fingerprint left on a document, tending to show the true identity of its author.” The court also cited Matter of Leon RR, 48 N.Y.2d 117, 122 (1979) and Kelly v Wasserman, 5 N.Y.2d 425 (1959) for the proposition that the initial declaration as independently admissible. See Patterson, 128 A.D.3d at 425. ARGUMENT POINT THE TRIAL COURT PROPERLY ADMITTED SUBSCRIBER INFORMATION FROM PRE-PAID PHONE RECORDS, AND, IN ANY EVENT, ANY ALLEGEDLY IMPROPER HEARSAY WAS HARMLESS. Defendant claims that the Appellate Division’s affirmance of the trial court’s admission of the subscriber information erroneously relied on arguments not decided adversely to defendant (see Appellant’s brief, p.41). This claim overlooks the fact that this issue was extensively litigated over several days, during which the trial court fine- tuned its ruling before ultimately concluding that the subscriber information did not have to fall within a hearsay exception because it was not being admitted for its truth (e.g. that the subscriber was Darnell Patterson), but for the fact that someone activated the phone under that name (A.225, 582-83). The trial court then noted that the phone records “circumstantially corroborated” defendant’s identity as one of the assailants (A.583). Since this was the same rationale utilized by the Appellate Division, that Court did not affirm on a basis not decided adversely to defendant. 15 The phone records from the pre-paid accounts, in their entirety, were admitted, in exception to the hearsay rule, as business records. However, the subscriber information contained therein was not admitted for its truth. Accordingly, the evidence in this case was not hearsay. And, in any event, any error in the admission of the subscriber information was harmless, since the evidence of defendant’s guilt was overwhelming. Furthermore, the usage of pre-paid phones in criminal activities is quite prevalent, and, as a result, pre-paid phone records can serve an important truth- seeking function; defendant’s case is yet another example of a person using an alias to avoid being traced, in order to activate a pre-paid phone for use in the commission of a crime. Thus, this Court should not disturb defendant’s conviction. A. Contrary to defendant’s claim, this case presents no LaFontaine/Concepcion problem, since the Appellate Division affirmed on a ground that was litigated below and decided adversely to defendant. Defendant boldly intimates that the Appellate Division exceeded its statutory authority by affirming on a basis that the trial court had decided in his favor, in contravention of the rule set forth in People v. Concepcion, 17 N.Y.3d 192, 196 (2011), (see Appellant’s brief, p.41, 44). This claim is meritless. Defendant asks for the same “flawed and overly narrow construction of the statutory limits of 470.15 (1)” that this Court rejected recently in People v. Nicholson, _N.Y.3d_, 2016 N.Y. Slip Op 01206, *4 (February 18, 2016). In that case, this Court noted that CPL § 470.15 does not “prohibit an appellate court from considering the 16 record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination.” Id. The Court found that the Appellate Division affirmed on a ground that was relied on by the trial court, which, therefore, did not run afoul of the holdings in People v. LaFontaine, 92 N.Y.2d 470 (1998) or Concepcion, 17 N.Y.3d at 195. Nicholson, 2016 N.Y. Slip Op 01206, *4. Specifically, in Nicholson, the trial court determined that a rebuttal witness’s testimony in contravention of the defense witness’s statement that she was merely friends with defendant was admissible as “proper rebuttal.” On direct appeal, the defendant argued that the trial court erred in allowing the People to call a rebuttal witness. Id. at *4. The Appellate Division was then left to determine whether the purpose for the rebuttal—i.e. the People’s effort to establish that the defense witness and defendant were not mere friends—was permissible given the testimony. Id. at *4; see also People v. Nicholson, 118 A.D.3d 1423, 1424 (4th Dept. 2014). It ultimately concluded that the court allowed the rebuttal witness to testify for the “limited purpose” of whether the defense witness and defendant were friends, which it concluded was proper, and not a “ground that [wa]s different from that determined by the court.” See Nicholson, 118 A.D.3d at 1425. The defendant then argued to this Court that the Appellate Division’s affirmance rested on the “wholly separate ground that the rebuttal testimony permitted an inference of [the defense witness’s] bias or motive to fabricate.” Nicholson, 2016 N.Y. Slip Op 01206, *4. This Court noted that there must be a “reviewable predicate” for the Appellate 17 Division to review a trial court’s decision. Id., *5. Accordingly, when a trial court provides a reason for its decision, “and there is record support for inferences to be drawn from that reason,” the Appellate Division does not act in contravention of CPL § 470.15 when it considers those inferences. Id. Thus, the Appellate Division affirmed on a ground that was relied on by the trial court, “namely to establish the defense witness lied that she and defendant were merely friends, as well as the unspoken, record-supported inferences that can be drawn from that testimony.” Id. Here, like Fourth Department in Nicholson, the Appellate Division rested its affirmance on a ground relied on by the trial court, as well as the inferences that could be drawn from the record. First, the trial court ultimately explained—in its last discussion on the matter—that the subscriber information was to be admitted for a non-hearsay purpose. It recognized that there was no business duty from the caller who activated the phone, and was admitting the subscriber information to allow the People to show that it was not mere coincidence that Mr. Johnson identified defendant, or that calls were made to the cell phone “for which somebody gave the information Darnell Patterson and then that this defendant bears that tattoo.” (A.225). Proof of the fact that the subscriber information was not being admitted for the truth that defendant was the activator of the phone is demonstrated by the court’s statement that it recognized that the “caller” had no business duty, and that the subscriber information was being offered to show that “the information was given at a time that preceded the crime itself...” (A.225). 18 If the court had intended to allow the subscriber information to be admitted for the truth that defendant activated the pre-paid phone, it most likely would have referenced defendant, rather than “the caller,” and would not have stated, in the passive voice, that the information “was given.” Instead, its ruling stood for the proposition that anyone could have activated the phone. This rationale was maintained in the court’s post-trial decision, in which it memorialized that the subscriber information could establish that “someone used the name Darnell Patterson to activate the very cell phone that was called by a codefendant immediately before and after the gunmen entered the apartment.” (A.583). Accordingly, the trial court’s ruling was adverse to defendant. Second, the Appellate Division’s affirmance comported with the trial court’s reasoning. The Appellate Division maintained that the subscriber information did not constitute assertions of fact (A.2-3)—meaning that defendant himself did not necessarily register the phone—which is precisely what the trial court reasoned when it stated that “someone” used defendant’s name and address when registering the phone (see A.225, 583). Furthermore, unlike LaFontaine and Concepcion—which involved affirmances on grounds not decided adversely to the defendants7—here, the 7 In Concepcion, 17 N.Y.3d at 196 and LaFontaine, 92 N.Y.2d at 474, this Court held that CPL § 470.15(1) prevents the Appellate Division from affirming a judgment on a ground not decided adversely to the defendant by the trial court and that this Court’s powers of review were no broader than those of the Appellate Division. Specifically, in LaFontaine, the trial court and Appellate Division found different reasons for the denial of a suppression motion. There, the trial court found that New Jersey police officers could execute a Federal arrest warrant in New York State, and rejected a citizen’s arrest rationale for the defendant’s arrest. The Appellate Division, on the other 19 Appellate Division’s affirmance, like Nicholson, was based on the non-hearsay rationale that was litigated by the trial court and unfavorable to defendant. Although defendant claims that the trial court rejected the non-hearsay argument…” (see Appellant’s brief, p.42), defendant relies on only selected statements by the trial court—before it even handed down its ruling—to advance his claim. Defendant claims that the court “rejected the non-hearsay argument, declaring that...the reason [the prosecutor] wanted the subscriber information in evidence was to corroborate the complainant’s identification of appellant” (see Appellant’s brief, p.42). Although at one point in the middle of the proceedings, the court posited that the prosecutor was seeking to admit the subscriber information for the truth that defendant was the activator of the phone (see A.210), the court did not ultimately “reject the non-hearsay argument.” The inferences to be drawn from the record (see Nicholson, 2016 N.Y. Slip Op 01206, *5) demonstrate that the court adopted the non- hearsay rationale, since it stated that the information was to be admitted in order to show that the coincidences that defendant’s personal information “was given” by a “caller,” and, later, he was positively identified in a lineup. Defendant essentially complains that the trial court did not “state every analytic step underlying a determination to admit or deny evidence,” even though the reasoning is obvious from hand, accepted the citizen’s arrest rationale, which, therefore, was an affirmance on a ground not decided adversely to defendant. Similarly, in Concepcion, the trial court, while rejecting the People’s theory of consent, denied suppression to defendant on the basis of inevitable discovery, and the Appellate Division denied suppression on the basis of consent. This too was an affirmance on a ground not decided adversely to the defendant, since the trial court ruled in defendant’s favor on that issue. 20 the record. Nicholson, 2016 N.Y. Slip Op 01206, *5. Defendant’s contentions that, on direct appeal, the prosecution “all but abandoned” its reliance on the business records exception and that the Appellate Division affirmed on an argument not litigated below, since it concluded that the initial declaration could be independently admissible (see Appellant’s brief, p. 43-44), are incorrect. First, the papers below, as well as here, demonstrate the prosecution’s belief that the phone records containing the subscriber information could be properly authenticated and admitted as business records. Similarly, below, as well as here, the prosecution’s theory was that the subscriber information contained on the phone records could be introduced for a non-hearsay purpose. Second, the contention that the Appellate Division’s statement, “the initial declaration was independently admissible” (see A.3) somehow indicates that its basis for affirmance was not litigated below, is false. It is clear from the Appellate Division’s decision that the court adopted the rationale that the phone records as a whole were business records, but that the subscriber information contained therein was non-hearsay, since anyone could have purchased the phone and provided defendant’s information. To this end, the Appellate Division noted that, “The possibility that the phone could have been purchased by an unknown person who had somehow acquired defendant’s pedigree information goes to weight, not admissibility” (A.3), which demonstrates that the court was of the opinion that the subscriber information was not being admitted for the truth that defendant was the 21 activator of the phone. In sum, the Appellate Division’s affirmance was proper. Defendant’s claim that the Appellate Division affirmed on a ground that was not decided adversely to defendant demands an “unexpected level of descriptive technical exactitude” that is not supported by the record. Nicholson, 2016 N.Y. Slip Op 01206, *5. B. The court properly admitted the subscriber information as non-hearsay located within a business record, and in any event, any error in its admission was harmless 1. The subscriber information was properly admitted Defendant contends that the trial court improperly admitted his subscriber information, because the admission of this evidence violated the requirement that “every declarant must have a business duty to accurately report” under the business records exception to the hearsay rule. Because this information was not admitted for its truth, it was not hearsay, and, therefore, his claim is without merit. CPLR § 4518 carves out the business records exception to the hearsay rule, and sets forth the requisite foundational requirements: Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence, or event, if the judge finds that it was made in the regular course of any business, and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event, or within a reasonable time thereafter. The statute further notes that “[a]ll other circumstances of the making of the 22 memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility.” Id. Here, the phone records were properly admitted through the testimony of the records custodians from Sprint/Nextel and TMobile. With regards to the number, Mr. Strohm testified that the call log and subscriber information records were kept in the regular course of business. He also testified that call logs and any volunteered information at activation were recorded by someone who had a duty to record accurately, at the time of the calls or at the time of activation, respectively (A.443). Mr. Santos offered almost exactly the same testimony with regards to the 917 number (A.455-456). Thus, both records were properly authenticated and received into evidence pursuant to the requirements of CPLR § 4518. Therefore, the contact between the two phones that occurred around the time of the incident— which was evidenced by the call logs in the records themselves (see A.10-16, 18-20)— was clearly admissible under the business records exception to the hearsay rule. Next, the subscriber information, located within the phone records, was not offered for its truth. Put differently, it was not admitted for the truth that “Darnell Patterson” lived at Cedar Avenue, or that “Daichele Merrero” had a date of birth of 1972. It was not even admitted for the truth that defendant and Goree activated the phones at issue, as the prosecutor conceded (see A.180). This is further evidenced by the disclaimer on the records themselves, which stated that the information was often inaccurate (A.4) and the Sprint/Nextel and TMobile 23 custodians’ testimony—both during voir dire and direct—that the volunteered information is not verified (A.444-446, 456-459). The information was instead introduced to establish the fact that individuals activated the 718 and 917- numbers, by providing particular information that was associated, respectively, with defendant and Goree. As a result, there was no hearsay violation, because the subscriber information was not introduced for its truth, but to complete the narrative, and to allow the jury to make its proper inferences that defendant committed the crime that night. See People v. Huertas, 75 N.Y.2d 487, 493 (1990)(complainant’s description evidence to police was “evidence that assist[ed] the jury in evaluating the witness’s opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification,” and was therefore properly admitted for a non-hearsay purpose). The subscriber information indicates only that at some point, the names and personal information for “Darnell Patterson” and “Daichele Marrero” were provided in order to activate the phones. Thus, the admission of the subscriber information invited the jury to consider, along with other evidence that “Darnell Patterson” was an alias of defendant’s, and that the fact that the 718 number was used before and after the burglary to contact Goree was not just a coincidence. Put differently, it is evident that the subscriber information was not offered for its truth, because the questions of where defendant lived, or the date of Goree’s birthday, or who activated 24 the phones, have nothing to do with the commission of the crime.8 Defendant’s claim that the court’s failure to give a limiting instruction “underscores that the information was offered for its truth” (Appellant’s brief, p. 52) does not persuade. Plainly, defense counsel failed or neglected to request a limiting instruction regarding the subscriber information at the time that the evidence was received, and therefore, he forfeited any claim that such an instruction should have been given. See CPL § 470.05(2); People v. Santiago, 52 N.Y.2d 865, 866 (1981)(“if defendant was of the view that the curative instructions which were given were insufficient, he should have immediately made an application seeking further or more 8 It is worth noting that, arguably, defense counsel invited the alleged error of which defendant now complains. Defense counsel conceded, when moving for severance on defendant’s robbery indictments, that in this case, the phone records were tied to defendant’s name and address, and that this evidence was corroborating evidence that was “separate and apart from any eyewitness identification that’s going to be made.” (A.161). Later, defense counsel made an application to preclude defendant and Goree’s phone records, arguing that they were hearsay, and that the subscriber information contained therein was inherently unreliable because the information reported is often inaccurate or incomplete since no identification is required when purchasing the phones (A.168-172). In response to this, the prosecutor argued that this type of evidence “completes the narrative,” and would be introduced to establish that defendant was one of the last people Goree called before the robbery took place, since the information cannot stand for the proposition that defendant was the one who was there or who activated the phone (A.177, 180-181). The prosecutor emphasized that if the information was not admitted, “the basis for which severance was granted no longer applies,” and that if she had such “a slam dunk corroboration,” she would not have opposed severance. (A.177, 180-181). Ultimately, the court adhered to its decision to sever defendant’s case (A.196). As such, counsel “invited” the admission of the subscriber information, as he conceded that this was the corroborating evidence that was basis for defendant’s severance motion. He therefore could not have claimed after the fact that the evidence should be precluded, nor does defendant have any basis to argue now that it should not have been admitted. To the extent that counsel believed that this evidence was hearsay, counsel could have fully preserved his claim by moving to reargue the severance so that his cases could be consolidated again. C.f. People v. Russell, 71 N.Y.2d 1016, 1017 (1988)(“The purposes and requirements of the preservation rules are not satisfied by intertwining and piggy-backing distinct procedural steps of the criminal proceeding, as for example severance motions and evidentiary submissions”). 25 complete instructions,” and “[i]n the absence of such an application, he may not assert the inadequacy of such instructions as error on appeal”). Further, there would have been no reason for the court to give such an instruction sua sponte, since the jury already knew the subscriber information was not to be considered for its truth. First, the court had already explained to the jury when Detective Feretti was testifying, that the subscriber information was to be considered not for its truth, but to explain the investigatory steps that the detective took (see A.397-398, 400-401). Second, by the time the evidence was actually admitted, after defense counsel’s voir dire questions which focused on the accuracy of the subscriber information,9 the jurors knew—as the parties had discussed (see, e.g. A.176-177, 205- 206)—that the subscriber information was not necessarily true; immediately after the TMobile and Sprint/Nextel records were received, Mr. Santos testified that activators can volunteer information without identification, and Mr. Strohm testified that activators can volunteer information, but that this information could be inaccurate because it is not verified (A.459, 445). Further, the jurors could see for themselves when they requested the records that the information therein was not offered for its truth because the records explicitly stated that the subscriber information was unverified (see A.5; A.555). 9 Specifically, defense counsel asked the respective records custodians whether, (1) the subscriber information was “not verified,” since no identification was required, and (2) since the information was not verified, the subscriber information could be inaccurate, to which both witnesses responded in the affirmative (A.444-445, 457-458). 26 2. The rule announced in the Johnson v. Lutz line of cases that the initial declarant must also act under a duty to the record-maker was developed in cases where hearsay was direct evidence of a party’s legal responsibility, which is not the case with the subscriber information in this case. Defendant asserts that the subscriber information here is inadmissible because, under Johnson v. Lutz, 253 N.Y. 124, 128 (1930) and its progeny, each participant who contributes to the creation of a business record, including the initial declarant, must be acting within his business duty to provide information to the record-maker (see Appellant’s brief, p. 48). Defendant’s argument in this regard is largely irrelevant given that the Appellate Division made clear that the subscriber information did not “constitute assertions of fact” (i.e., they were not being admitted for their truth). Thus, the business records argument is inapplicable, at least as it concerns the subscriber information, as opposed to the remainder of the phone records. In any event, defendant’s understanding of the business records exception is misguided for a few reasons. As will be shown, first, the requirement in the Johnson v. Lutz line of cases that all participants involved in the making of a document act under a business duty, is inapposite when, as here, the allegations in the document were not direct evidence of legal culpability or liability. Second, defendant’s reliance on Matter of Leon RR, 48 N.Y.2d at 122, for the proposition that an initial declarant must also be acting under a business duty (see Appellant’s brief, p. 47-48), is misplaced in light of this Court’s more recent recitations of the business records rule in People v. Kennedy, 68 N.Y.2d 569 (1986) and People v. Ortega, 15 N.Y.3d 610 (2010). 27 In Johnson v. Lutz, the estate of Mr. Johnson, a deceased motorcyclist, brought a wrongful death suit against “Lutz and Sons,” the owners of the truck that collided with Mr. Johnson. The jury entered a verdict in favor of Mr. Johnson, despite the “sharp conflict in the testimony” regarding the circumstances of a motorcycle and vehicle collision. See Johnson v. Lutz, 253 N.Y. at 125. The sole basis for appeal was the trial court’s exclusion of a policeman’s report of the accident on the ground that the policeman was not present at the time of the accident. The report “was made from hearsay statements of third persons who happened to be present at the scene of the accident” when the policeman arrived, and it was not clear whether the third persons “saw the accident and stated to him what they knew, or stated what some other persons had told them.” See id. at 127-128 (1930). The Appellate Division and this Court affirmed judgment on the ground that section 374- A of the Civil Practice Act (the predecessor to CPLR § 4518), “was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto.” Id. Crucially, in that case, the hearsay statements of the third persons in the policeman’s report would have directly borne on the question of Lutz’s liability. Here, on the other hand, the subscription information was not direct evidence of defendant’s guilt, since nothing about the reporting of his name and address was direct evidence of the burglary. Similarly, in Kelly v. Wasserman, the content of the business record at issue 28 directly incriminated one of the parties. Ms. Kelly—a 65-year old tenant of Mr. Wasserman’s—sued Mr. Wasserman to amend the deed to Mr. Wasserman’s house, which had previously belonged to Ms. Kelly. Ms. Kelly sought to include her life tenancy in the house in Mr. Wasserman’s deed following their oral agreement that she would convey her house to him, in exchange for his payment of her debts; Mr. Wasserman believed that their agreement only applied if the Department of Housing and Buildings did not deem the house an unlawful multiple dwelling, and when the agency so found, he sought to evict her. See Kelly v. Wasserman, 5 N.Y.2d at 425-426. The Supreme Court, Kings County entered judgment in favor of the landlord and the Appellate Division affirmed. Id. at 425. There, the main issue before this Court was whether the case notes of a Department of Welfare worker were admissible to show the terms of Ms. Kelly and Mr. Wasserman’s agreement. Id. at 427. The worker had contacted Mr. Wasserman with regards to Ms. Kelly, a welfare recipient, and in two separate conversations—one being via telephone—Mr. Wasserman reported that Ms. Kelly would be permitted to live in the house rent free, without qualifying that this was contingent on the Department of Housing and Buildings. Id. at 428. This Court reversed judgment, finding that the records complied with section 374-A of the Civil Practice Act because, “There can be no doubt but that the alleged statements of [Mr. Wasserman], which are most germane to the question of [Ms. Kelly’s] shelter, were the Department of Welfare’s business, and the practice…of maintaining records on those receiving 29 welfare support qualified those records for admissibility.” Id. As a side note, a critical difference between the two cases, which explains why Kelly v. Wasserman is still good law, and not “irreconcilable with Johnson v. Lutz” (see Appellant’s brief, p. 65) is that, in Kelly v. Wasserman, the case worker’s notes memorialized firsthand conversations wherein Mr. Wasserman made admissions, whereas in Johnson v. Lutz, the policeman’s report was based on voluntary statements made by third persons. In any event, like Johnson v. Lutz, the records in Kelly v. Wasserman, were direct evidence of the extent of the defendant’s legal responsibility, whereas here, the name and address of defendant—and even the idea that he might have activated the phone himself—did not inculpate defendant. In another influential business records case, Matter of Leon RR, the records at issue would have borne directly on the question of legal responsibility. The Family Court and Appellate Division found that the best interests of the child, Leon RR, mandated that the parental rights of his biological parents be terminated. See Matter of Leon RR, 48 N.Y.2d at 120-121. This Court found that Leon’s Social Services case file was improperly admitted, noting, “The case file admitted by the court was replete with inadmissible hearsay which played a large part in the ultimate disposition of the case.” Id. at 121. Specifically, the Court noted that some of the entries in the case file consisted of statements, reports, and rumors. Id. at 123. The Court stated that “it is essential to emphasize that the mere fact that the recording of third-party statements by the caseworker might be routine, imports no guarantee of the truth, or even 30 reliability, of those statements.” Id. Like Johnson v. Lutz, and Kelly v. Wasserman, as this Court explicitly noted (see id. at 121), the allegations in the records of Matter of Leon RR would have been direct evidence that incriminated Leon’s parents—a concern which is not present here. It is also worth noting that Matter of Leon RR presented a special concern that the record-maker was influencing the creation of the records, making the allegations therein unreliable. This Court expressly noted that the petitioner, the Social Services agency that had placed Leon RR with foster parents, “so aligned itself against the natural parents as to render its efforts, if that is what they might be termed, to reintegrate Leon into his natural family insufficient to satisfy its statutory burden.” Id. at 121. The Court also found it fundamentally unfair that the respondent-parents did not have a chance to review the file until the termination of parental rights hearing. See Id. at 123. Unlike most cases pursuant to CPLR § 4518, here, the record-maker was a party to the litigation itself, and had determined that, for whatever reason, Leon RR’s biological parents were unfit. There was, therefore, a possibility that in making Leon’s case file, the Social Services workers might have given credence to unsubstantiated rumors or false reports in order to advance their case. This concern is not present in defendant’s case, since Sprint/Nextel and TMobile had no self-interest in Goree and defendant’s criminal cases. Thus, the ruling in Matter of Leon RR that “each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business 31 conduct,” (see id. at 122) should be analyzed with a view to the unique facts of Matter of Leon RR specifically and the inherent unreliability of the Social Services record-maker being a party to the litigation of that case. This is especially true, since the initial declarant language is not actually present in CPLR § 4518. Indeed, in a more recent case, People v. Kennedy, 68 N.Y.2d 569, 580 (1986), this Court refrained from citing Matter of Leon RR or referring to the initial declarant concept as a foundational requirement of CPLR § 4518. The same is true in an even more recent case, People v. Ortega, 15 N.Y.3d 610, 617 (2010). In Ortega, this Court explored whether the business records exception extends to medical records, wherein the victim-plaintiffs were reported to have claimed that the defendants, Ortega and Benston, committed crimes. Ultimately, without citing to Matter of Leon RR’s initial declarant requirement, the Court found that the statements were properly admitted under the business records exception, because medical records are “trustworthy as they are designed to be relied upon in affairs of life and death and as they reflect the condition of a patient who has the clear motivation to report accurately.” Id. Ortega is a useful case for comparative purposes. First, the concurrence highlights the concept of “hearsay within hearsay.” In his concurrence, Judge Smith, looking to Johnson v. Lutz, explained that hearsay statements that inculpate a defendant and are located within a business record, require their own hearsay exception for their admission. Judge Smith clarified that the victim-patients’ statements to hospital 32 employees constitute “hearsay within hearsay,” which require a hearsay exception of their own to be admissible. See id. at 620. He noted that in the each of the Ortega cases, the victim-patients’ statements to doctors were properly admitted, because of their intrinsic guarantee of reliability. Specifically, in Ortega, the victim-patient’s statement that he had been forced to smoke from a pipe was necessary for treatment in order to determine how the patient came to ingest the drug, while in Benston, the victim- patient’s statement that she was choked by her boyfriend—which was noted on the record by medical personnel as “domestic violence and asphyxiation”—was necessary for her psychological treatment. Id. As stated, here, the framework is not “hearsay within hearsay,” but non-hearsay within a hearsay exception. In both Ortega and the case at hand, the medical records and the phone records constituted business records that were properly admitted, and the remaining question was whether the victim-patient’s statement or the subscriber information located within the records were admissible. Moreover, a second helpful comparison between this case and Ortega is the victim-patients’ statements as hearsay and the subscriber information as non-hearsay. Like Johnson v. Lutz, Kelly v. Wasserman, and Matter of Leon RR, the statements in Ortega directly inculpated the defendants. Presumably, in the Ortega cases, the prosecution sought to introduce into evidence one victim-patient’s statement that defendant forced him to smoke drugs and the other victim-patient’s statement that her ex-boyfriend hit her, as true statements in and of themselves, and, therefore, direct evidence of the defendants’ crimes. Here, on the 33 other hand, as the prosecutor argued and trial court stated, it did not matter if defendant actually lived at Cedar Avenue, or if he actually activated the phone. Thus, there was no “guarantee of reliability” that needed to be met in this case (see Ortega, 15 N.Y.3d at 621), because the subscriber information was not being offered for its truth.10 3. Any error in the admission of the subscriber information was harmless Finally, any error in the admission of the subscriber information was harmless. First, Mr. Johnson testified that when he was with Goree, he observed defendant barge into his apartment, point a gun at him, demand his jewelry, including an expensive chain and charm, and steal his property. (A.251-284). Defendant’s argument that Mr. Johnson’s identification testimony was weak (see Appellant’s brief, p. 56), is unconvincing. The questions of whether Mr. Johnson accurately described what defendant looked like or stuttered while on the phone with the 911 operator, are 10 It is worth mentioning that the People noted an alternative theory on direct appeal that there was an “indicia of reliability” for the subscriber information to be considered for its truth, because defendant could have been said to have had a “business duty” to accurately report his contact information to Sprint/Nextel. Defendant would have been benefitted by the accurate reporting of the information, because he would have had an interest in maintaining and paying his phone account. See Pencom Systems, Inc. v. Shapiro, 237 A.D.2d 144 (1st Dept. 1997)(recruiter’s notes on job applicants’ statements and the applicants’ knowledge that recruiters would be relying on them “created an equivalent business duty on the part of the applicant to accurately respond to the recruiter’s inquiries,” which gave the records a sufficient indicia of reliability to qualify as business records); see also People v. McKissick, 281 A.D.2d 212 (1st Dept. 2001)(job application and W-4 form were properly admitted as business records because the prospective employee had a business duty to accurately report her information since she knew the hiring company would be relying on it); People v. Matthews, 16 A.D.3d 135, 137 (1st Dept. 2005)(same). The trial court considered this line of argumentation (see A.199-201), prior to its final ruling that the subscriber information could be admitted for a non-hearsay purpose. 34 nothing but distracting arguments that attempt to deflect from the reality that Mr. Johnson accurately identified defendant in a lineup (See A.301-302, 404-409). There was a Wade hearing conducted to ensure that proper identification procedures were carried out, and yet, on direct appeal, defendant did not raise any arguments pertaining to this portion of the proceedings. Furthermore, defense counsel below withdrew his application for an eye-witness expert (A.168). Second, in addition to Mr. Johnson’s testimony, Mr. Rivera testified that on the night of the incident, a chain and a charm were pawned by “Daichele Goree” (A.376- 380). Third, it was stipulated that Mr. Johnson had been calling the 917 number on that evening (A.460-461). And, Detective Ferretti testified that he received Goree’s phone number, 917 , from Mr. Johnson, and when investigating the records linked to this number, the phone number 718 produced a lead. (A.399-400). Notwithstanding the subscriber information, Mr. Strohm testified that the 718 number called 347 one time, 646 four times, 718 twelve times, 718 six times, and 646 one time (A.449-451), and Ms. Lowe testified that while in Riker’s defendant called these same exact numbers: he called 347 a total of 1371 times, 646 a total of 48 times, 718 a total of 31 times, 718 a total of 58 times, and 646- a total of 103 times (A.467-471). Putting aside evidence of the subscriber information, defendant’s guilt of second degree robbery and second degree burglary was overwhelmingly proven by the 35 evidence at trial by Mr. Johnson’s identification, and by defendant’s Riker’s call logs which featured the same numbers that were in contact with the 718 number. The connection between the 718 number and defendant makes it abundantly clear that defendant was one of the ones who committed the burglary and robbery, because the intrusion occurred at the same time that Goree was there, and while her 917 number (as provided by Mr. Johnson) had been calling the 718 immediately before the break-in. Therefore, there is no likelihood that the verdict would have been different had the jury not learned the subscriber information. See People v. Crimmins, 36 N.Y.2d 230, 242 (1975). C. As a general matter of policy, the admission into evidence of subscriber information connected with pre-paid phone accounts serves an important truth-seeking function Pre-paid cell phones are frequently used in the commission of crimes, because, as defense counsel below conceded, users are able to evade monitoring from law enforcement (see A.204). Because the activation of pre-paid phones does not require purchasers to verify their identity, criminals use these devices to contact their accomplices or victims shortly before a crime, with the expectation that this cannot be traced back to them. For example, in United States v. Byers, 649 F.3d 197, 203-04 (4th Cir. 2011), the defendant’s accomplice purchased a pre-paid phone for the sole purpose of making an untraceable call to the victim to lure him outside before he was murdered. See also S.E.C. v. Conradt, 947 F. Supp. 2d 406, 410 (S.D.N.Y. 2013)(the 36 court noted that the defendant, who faced insider trading charges, admitted that members of his group had bought “burner phones,” presumably so that their conversations could not be recorded by authorities); United States v. Sierra, 2008 WL 4411330, *5 (5th Cir. 2008)(law enforcement official testified that the defendant had a pre-paid cell phone, which he explained, is often used by drug dealers because they are untraceable); United States v. Martinez, 2013 WL 563158, *3 (11th Cir. 2013)(trooper testified that pre-paid phones are often used in drug trafficking, and the court found defendant’s possession of pre-paid phone, was, inter alia, sufficient evidence of his drug conviction); Commonwealth of Pennsylvania. v. Cash, 2015 WL 6468686, at *14 (Pa. Commw. Ct. 2015)(law enforcement official testified that drug dealers commonly use “burner phones,” which are “no-contract phones” that are used in order to hide their identity); State v. Butler, 296 Conn. 62, 67 (Sup. Ct. Conn. 2010)(law enforcement official testified that “a lot of dealers use boost phones for the simple fact that they can’t be traced back to them”). When purchasing a pre-paid phone for the commission of a crime, a defendant may choose to activate his phone without providing subscription information, which would, therefore, mean that the phone would not be registered to any one specific person. In the alternative, a defendant may choose to activate his phone by providing false user information, or an alias. This makes it difficult for police officers to conduct their investigations. However, sometimes they can get a “lead” if an unregistered or pseudonymously registered pre-paid phone is in contact with a confidential informant 37 or a victim. For example, in People v. Nichol, 121 A.D.3d 1174, 1178 (3d Dept. 2014), the defendant was found to have been in possession of a pre-paid phone that was not registered to anyone in particular, but that had been in communication with a confidential informant in order to set up drug sale transactions. In a pair of related cases that are eerily similar to defendant’s, People v. Dozier, 94 A.D.3d 1226 (3d Dept. 2012), and People v. Thompson, 79 A.D.3d 1269 (3d Dept. 2010), the codefendants used a pre-paid phone in order to communicate before their assault on the victim, which was ultimately traced back to them. One evening, Thompson and his girlfriend/victim retreated to his hotel bedroom, where he excused himself to make calls on his cell phone in the bathroom. Shortly after he returned from the bathroom, a masked intruder—Dozier—entered the hotel bedroom, slashed the victim multiple times with a sharp, unknown object on her face and body, threatened to kill her, and fled without taking anything. Although Thompson was present, he did not intervene or say anything during the attack. See Dozier, 94 A.D.3d at 1226; Thompson, 79 A.D.3d at 1269-70. The police investigation revealed that Thompson had been communicating with Dozier on Dozier’s pre-paid cell phone, which was registered using an alias and a phone number and email address of Dozier’s friend. Dozier’s friend, however, testified that she never used the cell phone. See Dozier, 94 A.D.3d at 1229; Thompson, 79 A.D.3d at 1271. Dozier and Thompson had placed eight separate calls to one another in an approximate two-hour timespan immediately preceding and right after 38 the attack. The police investigation also revealed that there were 64 phone calls between the two of them in the five days preceding the attack. See Thompson, 79 A.D.3d at 1271. The Third Department found that the cell phone records were corroborating evidence of the victim’s testimony, and that weighing all of the testimony and evidence and “the inferences to be drawn therefrom,” the jury rationally concluded that defendant arranged with Dozier to commit the assault that night in the hotel room. See id; Dozier at 94 A.D.3d at 268-269. Here, like Dozier, the phone that was in contact with Goree immediately preceding the burglary was registered under defendant’s alias, “Darnell.” The jury was entitled to hear this information, just as the Dozier/Thompson juries were entitled to hear that although Dozier used an alias and his friend’s information, his friend did not possess or use that phone. To have shielded the jury from this information would have made little sense; the jury was free to draw the conclusion that defendant did not register the phone, since the testimony emphasized that the subscriber information might have been inaccurate. See supra at 21-22. As a rule, where pre-paid cell phone accounts contain subscriber information, the jury should be able to learn what the subscriber information is. This cuts both ways. It is important to note that subscriber information evidence could help a defendant’s case, just as it could help a prosecutor’s case. In People v. Madison, 106 A.D.3d 1490, 1493 (4th Dept. 2013), the Fourth Department set aside the verdict on the ground of newly discovered evidence when the subscriber information proved 39 that the pre-paid phone belonged to another. There, the defendant was convicted of second degree criminal contempt for violating an order of protection by telephoning the victim. It was discovered after trial that, during the times when the defendant was believed to have called the victim, the victim was actually phoned by her son and friends. This was established after pre-paid cell phone records revealed different subscriber information. The Fourth Department held that this information was material and non-cumulative, and reversed defendant’s conviction. Id. This is precisely the sort of information that a jury should hear when weighing evidence. Theoretically, a defendant in the position of Madison, could purchase a pre- paid cell phone and register it with a friend or family member’s information so that he could call the victim, in order to evade a criminal contempt charge. In the end, however, the jury must see the subscriber information so that it can weigh both the defendant’s explanation that he was not violating the order of protection—because the phone was registered to another—against the prosecutor’s response that defendant himself purposely registered the phone in another’s name in order to evade detection. In sum, considering the prevalence of pre-paid cell phones in the commission of crimes, the admission into evidence of subscriber information provided in a pre- paid account promotes the truth-seeking process. 40 CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. Respectfully submitted, DARCEL D. CLARK District Attorney Bronx County Attorney for Respondent _________________________________ BY: MARIANNE STRACQUADANIO NANCY KILLIAN MARIANNE STRACQUADANIO Assistant District Attorneys Of Counsel February 19, 2016 41 PRINTING SPECIFICATIONS STATEMENT This brief was prepared in Microsoft Word 2010, Garamond typeface, with 14- point type for the body and 14-point type for the footnotes, and was calculated by word count as containing 10,720 words.