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Defendant Files Appeal with NY Appellate Court Based on Alleged Hearsay Violations


On the night of October 3, 2004, a New York woman was approached by her roommate. He told her that he had gone in to her purse and taken five dollars, but that he had later returned it. She became upset. They had been lovers in the past and when he was desperate for a place to stay, she had allowed him to live in her spare bedroom, platonically. She did not; however, want him to start feeling so “at home” that he did not think anything about going through her personal items like her purse and taking whatever he wants from her. She knew the problems that she could have with him in that regard. After all, they have known each other for a long time. She told him that he had crossed over the line and needed to move out.

He became furious. He physically assaulted her, strangling her first with a scarf and then a black leather belt. He told her that he was going to kill her. She managed to get away and called the police emergency number. He ran away. As soon as he was gone the woman packed up his property and took them over to his brother’s house. When she returned, the police were at her apartment. When they entered, they found the male subject hiding in a corner of her apartment waiting for her to return. He was arrested and she was taken to the hospital for treatment for her injuries.

While at the hospital, the female told the medical personnel that she had been strangled by an old boyfriend with a black leather belt. The attending physician wrote down her diagnosis on her medical records as “domestic violence [and] asphyxiation.” The man was arrested and charged. At trial, his defense team moved to have certain testimony and records removed before the jury could see them.

At issue was anything that referred to domestic violence or anything that referred to the suspect as anyone whom the victim had ever had a relationship with. The defense team also moved to have the hospital orders that dealt with a safety plan removed. A safety plan is a plan put into action at a hospital when a victim of domestic violence or other abuse is brought in. It is designed to ensure that when they are released from the hospital, they have a safe place to return home to.

The court did order that prior to the jury hearing the evidence, certain portions of the records would be removed. Specifically, those records would be the ones with any references to a history of abuse, that the victim had requested that the suspect leave her home, and any references that she had ever filed a complaint of domestic violence against him. The court did allow the following references to be used at trial: domestic violence, information about the relationship between the victim and her assailant, the description of the belt that he used to strangle her, the existence of a safety plan, and the attending physician’s repeated references to “domestic violence.” The defense team was instructed to make objections at the appropriate times during the trial in relationship to those comments if they so desired.

After the October 3, 2004 attack, the suspect moved out of the victim’s house, but was arrested two additional times for abusive actions against the victim violating the protective order; which was put in place as part of her safety plan initiated at the hospital, when she was released following the first attack.

On February 12, 2005, the defendant telephoned the victim’s home and cell phone a combined total of ninety –three times. The victim had a male friend at her home and the defendant had obviously been watching her home to determine that he was there. The defendant went to the victim’s apartment and started kicking at the door yelling for the man to leave her apartment.

On February 16, 2005, when the victim got off of the city bus on her way home from work, she was confronted by the defendant. This confrontation was, again, in violation of the protective order that was put in to effect to provide her with a safety plan for leaving the hospital. When he confronted her this time, he threatened to kill her if she testified against him. He told her that he had a razor with him and that he was thinking about killing her and then killing himself.

The next morning when the victim left her apartment to go to work, the defendant was waiting for her in violation of the order of protection, again. He followed her part of the way to her place of business until she was able to get away from him in a busy subway station.

At trial, the suspect was charged with assault in the second degree, attempted murder in the second degree, attempted assault in the second degree, criminal possession of a weapon in the fourth degree, four counts of criminal contempt in the first degree, two counts of criminal contempt in the second degree, intimidating a victim or witness in the third degree, aggravated harassment in the second degree and harassment in the second degree. The defendant was acquitted (found not guilty) for attempted murder in the second degree, but was convicted on all other charges.

On November 23, 2010 the Court of Appeals of New York heard an appeal on this case combined with an additional case based on a common issue between the two. That issue is whether certain statements made to medical officials and documented in medical records should be admitted as evidence in trial as relevant to the diagnosis and treatment of the victim under the business records exception to the hearsay rule.

The business records exception to the hearsay rule states that business records may be admitted as evidence in a court hearing even if the records claim to be comments spoken from one person to another person who may or may not be a witness in the trial. Hearsay is when one person testifies to what another person has said. Hearsay is not usually permitted in trials; however, there are exceptions to the rules prohibiting hearsay. One of those exceptions is the Business Records exception. In this first case, the business records at question were the hospital records that referred to domestic violence and asphyxiation as the diagnosis for the victim. There were also other statements written down by members of the hospital staff that were put into the records. These comments were relating to domestic violence, the status of the defendant as the former boyfriend of the victim, and the existence of a safety plan for the victim.

The business records exception to the hearsay rule states that,

“[a]ny writing or record … made as a memorandum or 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,[15 N.Y.3d 617]transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518 [a] ).[917 N.Y.S.2d 5, 942 N.E.2d 214]

This exception applies to criminal proceedings through Criminal Procedure Law § 60.10.”

Business records are considered an exception to the hearsay rule because they are “generally, . . . deemed trustworthy both because they reflect routine business operations and because the person making the particular entry has the responsibility to keep accurate records that can be relied upon for business purposes.” Williams v. Alexander, 309 N.Y. 283, 286, 129 N.E.2d 417 [1955] This case further establishes the veracity of hospital records reliability because it states that hospital records are relied upon in affairs of life and death. This precedent case details the facts that hospital records reliability is higher because statements made by a patient to a care giver are likely to be highly accurate since the patient has a clear motivation to report accurately to the hospital so that they will receive the correct treatment from the hospital.

Therefore, the courts have ruled that hospital records fall within the business records exception when they, “reflect acts, occurrences or events that relate to diagnosis, prognosis, or treatment or are otherwise helpful to an understanding of the medical or surgical aspects of . . .(the particular patient’s) hospitalization.” (Williams, 309 N.Y. at 287, 129 N.E.2d 417)

The defendant appealed his conviction based on his contention that the references in the business records unfairly prejudiced the jury and that they did not qualify for the business records exception to the hearsay rule. He stated that the statements referring to domestic violence and to a safety plan were not relevant to the victim’s diagnosis and treatment and should not have been allowed at trial. The courts did not agree with him and upheld his convictions.

The additional case that was heard in this appeal was connected to this one because the question of law brought before the appellate court was the same. This case involves statements that were made by the victim while he was at the hospital the night that he was assaulted.

In this case, a Washington Heights man who was twenty-five years old, was approached on a sidewalk at about 4:30 in the morning on July 14, 2007. The victim stated that he asked the man if he would purchase marijuana for him. The Washington Heights man stated that the other man pulled a gun and he and another man forced the Washington Heights man to go to a building that was close by. Once in the building, the victim advised that the men forced him to smoke crack cocaine from a glass pipe. The victim stated that the men robbed him of his bank cards and wallet and forced him to give them the personal identification numbers to withdraw money from his accounts with the cards.

The victim stated that the men held him by force for several hours alternately forcing him to “smoke (a) white substance from (a) pipe” and forcing him to go to banks to withdraw money. The victim stated that after many hours, he was able to escape. When he returned to his home, he was exhibiting visible signs of distress. He was hysterical, shaking and crying. He was taken to the hospital where he was able to tell the medical staff what had happened. The suspects were arrested later that night when they were stopped by a police officer for an unrelated traffic offense. In this defendant’s possession at the time of the police officer’s investigatory stop, he found: a small amount of crack cocaine, the victim’s bank cards, the victim’s cell phone, and a note containing the victim’s personal identification numbers associated with each bank card. The subject was arrested and charged with two counts of criminal possession of stolen property in the fourth degree. The subject was convicted on both counts. He filed a motion to appeal based on the contention that the statements made by the victim that were written down in the hospital records should not have been admissible under the business records exception to the hearsay rule.

His contention was that the victim’s statements were not relevant to his medical care. The Court disagrees. The manner in which the subject ingested the narcotic involved in a narcotic poisoning situation is definitely relevant to the proper treatment that is prescribed for the patient. Even though the courts have stated that the hospital records presented create a “hearsay within hearsay” problem because they contain not only “the written statements of the hospital employees who created the records-statements to which the business records exception might well apply – but also the hearsay statements of the alleged victims.” One lower court is quoted as saying, “Hearsay cannot be transformed into nonhearsay simply because a business routinely relies upon it and integrates it into its own records.” [942 N.E.2d 217, 917 N.Y.S.2d 8]( Second Med., PC. v. Auto One Ins. Co., 20 Misc.3d 291, 297, 857 N.Y.S.2d 898 [Civ. Ct., Kings County 2008] ).

Issues of law are constantly changing. A person who is not specifically trained in the law cannot begin to know what all of their rights are without the assistance of a professional. Here at Steven Bilkis and Associates, we provide New York Order of Protection Attorneys, New York Domestic Violence Lawyers, New York Assault Attorneys, and New York Criminal lawyers. New York Family Lawyers will stand by you and ensure that your rights are protected. New York Personal Injury Attorneys can argue your side and make sure that you and your loved ones are considered. We make sure that you are rightfully awarded compensation for your suffering.

Stephen Bilkis & Associates with its Domestic Violence Lawyers has convenient offices throughout the New York Metropolitan area including Corona, New York. Our Personal Injury Attorneys can provide you with advice to guide you through difficult situations. Without a Domestic Violence Lawyer you could lose precious compensation to help with your medical bills and the trauma to you and your loved ones following such a frightening experience. This is true even if the Attorney for the assailant has not adequately made their case. In addition to Personal Injury Law, Stephen Bilkis and Associates can recommend Criminal Lawyers who will protect your rights if you are ever arrested.

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