Former Manhattan prosecutors specializing in criminal defense and civil rights in state and federal courts.

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Court of Appeals Reverses Conviction Due to Improper Admission of Business Records

Posted By Galluzzo & Arnone LLP || 21-Jan-2010

The Court of Appeals last week decided the case of People v. Roland Ramos. In a memorandum opinion, the Court ruled that the prosecutor failed to lay the proper foundation under Civil Practice Law and Procedure 4518 to support the admission of several sets of business records. As the Court stated in a seminal case in this area, People v. Kennedy, 68 N.Y.2d 569, (1986), “[t]he 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 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. . .” Attorneys must use those certain magic words in laying the foundation for the admission of business records and establish the following four factual predicates:

i) that the record be made in the regular course of business,

ii) that it be the regular course of such business to make the record,

iii) that the record be made at or about the time of the event being recorded, and

iv) 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 conduct or the declaration must meet the test of some other hearsay exception.

Ramos reinforces the notion that this is a so-called “mandetory catechism” attorneys must employ or risk reversal.

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