People v. PattersonPeople v. Patterson
Lead Opinion
OPINION OF THE COURT
In this appeal, we are asked to determine whether the Appellate Division properly upheld the admission of subscriber information in prepaid cell phone records as nonhearsay evidence located within a business record. Because the subscriber information was not introduced for the truth of the matters asserted therein, the courts below properly determined that it was independеntly admissible.
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Defendant was convicted, after a jury trial, of second-degree burglary and robbery. The charges arose out of an incident in which defendant and another man entered the victim’s bedroom wearing bandanas and carrying pistols after defendant’s accomplice, Daichele Goree—who went to the victim’s apartment by invitation—received a series of cell phone calls while she was there. The victim testified that he could see defendant’s forehead, eyebrows, the bridge of his nose, his nostrils and the top of his ears. The men directed the victim to get on the ground, taped his wrists, mouth and ankles, and took the victim’s cash and various items of personal property. The victim freed himself and called 911, but he was unable to give the 911 operator a description of the men apart from stating that thеy were black, wore bandanas and carried guns.
Prior to trial, defendant moved to preclude the People from offering into evidence the subscriber information portion of the Sprint records, arguing that it constituted hearsay within hearsay. Defendant conceded that the log of the phone calls was admissible under the business records exception, but argued that the subscriber information was not admissible pursuant to that exception because the subscriber who initially provided the information had no duty to report it accurately. Because the records stated on their face that they could be inaccurate or incomplete, defendant argued that they should be precluded. The People conceded that the subscriber information did not prove that the person who registered the phone wаs Darnell Patterson or that defendant was in the room when the robbery took place, but maintained that the evidence was admissible for two limited purposes: to complete the narrative; and to show that the phone number that Goree called around the time of the robbery had been registered by someone using the name Darnell Patterson, with defendant’s address and birth date.
Supreme Court concludеd that the subscriber information was not admissible merely for the purpose of “complet[ing] the narrative,” given that the People sought to argue that the information corroborated the victim’s eyewitness identification of defendant. However, the court ruled that it would admit the subscriber information as a “business record! ]” through a Sprint representative’s testimony that it was Sprint’s regular course of business to make and kеep these records, but that Sprint did not verify the information and, therefore, “disclaimed] any reliability.” The court recognized that, because the subscriber had no business duty to provide accurate
At trial, defendant repeated his objections to the Sprint cell phone records and also argued that the subscriber information on Goree’s T-Mobile cell phone records should not be received in evidence. The court overruled the objections. As relevant here, representatives of both Sprint and T-Mobile testified that the records containing subscriber information for prepaid phones are made at the time the subscriber activates the phone, the call logs are recorded or cataloged at or around the time the calls are made, and the person recording all of the information contained in the records has a business duty to record it fairly, accurately and completely, but the subscriber information is not verified. The Sprint representative also testified that, shortly before and after the time of the robbery, the Sprint number in question received eight calls from Goree’s number and made three calls to that number.
In addition, there was evidence that, on the night of the robbery, the Sprint number dialed or received calls from five other numbers. A New York City Department of Corrections investigator thereafter testified that, during defendant’s incarceration while аwaiting trial on the instant charges, he called those same five numbers 1,371 times, 48 times, 31 times, 58 times and 103 times, respectively. The investigator also testified that the date of birth associated with defendant’s Department of Corrections identification number was the same as that included in the Sprint subscriber information.
The jury acquitted defendant of first-degree robbery and burglary, and grand larceny, but convicted him of second-degree rоbbery and burglary. On defendant’s appeal, the Appellate Division affirmed, concluding that the subscriber information— which it called “pedigree information”—“did not constitute assertions of fact” but was “properly admitted as circumstantial evidence of defendant’s identity as the purchaser of the phone,”
A Judge of this Court granted defendant leave to appeal (
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As a threshold matter, we reject defendant’s argument that the Appellate Division exceeded its authority under
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Turning to the merits, we agree with the courts below that the subscriber information was properly admitted for a
“Any writing or record, whether in the form of an entry in a book or otherwise, 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 aсt, transaction, occurrence or event, or within a reasonable time thereafter.”
More than 85 years ago, in Johnson v Lutz (
Pursuant to this rule, “[i]f the informant was not under a business duty to impart the information, but the entrant was under a business duty to obtain and record the statement, the entry is admissible to establish merely that the statement was made . . . [but] another hearsay exception is necessary in order to receive the statement for its truth” (Hayes v State of New York,
Consistent with these principles, the United States Court of Appeals for the Second Circuit concluded in United States v Lieberman (637 F2d 95, 100-101 [2d Cir 1980]) that a hotel guest registration card was not admissible for its truth under the business records exception to the rule against hearsay contained in Federal Rules of Evidence rule 803 (6) because the hotel employee registering guests did not verify the guests’ identity. Nevertheless, that court concluded that the registration card was “admissible as non-hearsay, simply to show that someone calling himself” the same name as a man who happened to be arrested by DEA agents while loading 46 cartons of marihuana into a van belonging to the defendant’s moving company “registеred in the hotel” (id. at 101). The registration card provided “a foundation for further evidence that from [the individual’s] room a call was made to [defendant’s] unpublished telephone number” (id.). The defendant in Lieberman was ultimately convicted of crimes involving conspiracy to distribute marihuana. “To provide evidence that the jury should infer that” the person calling defendant was the same individual who was arrested, “the government presented the tеstimony of the arresting . . . agent [that] . . . the address he had read on the driver’s license carried by [the individual] . . . was the
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Similarly here, the subscriber information was not hearsay, although it was contained within business records, because it was not admitted to provе the truth of the matters asserted therein. That is, the subscriber information was not offered to prove that “Darnell Patterson” and Goree were the subscribers of the cell phone accounts used at the time of the robbery, or that “Darnell” had a particular date of birth that matched that of defendant and lived at a particular address that was associated with defendant. Indeed, it was simply irrevelant whether that information was true or false and the cell phone company representatives testified that the evidence was not verifiable. Rather, as in Lieberman, the information was admitted for the limited purpose of showing that the individuals who activated the cell phone numbers identified themselves as Darnell Patterson and Goree, and that “Darnell Patterson” gave certain pedigree information that was otherwise associated with defendant.
In other words, the purpose of the subscriber information was not to prove that “Darnell Patterson,” or even defendant, had activated the prepaid Sprint account, but to show that the account had some connection to defendant—regardless of how tenuous—because such a connection would be helpful to the jury in assessing the reliability of the victim’s identification of defendant as the perpetrator. The evidence was ultimately relevant to the People’s argument to the jury that it was not coincidental that someone—regardless of who—provided pedigree information associated with defendant in activating
We, therefore, conclude that the subscriber information was properly admitted for a limited, nonhearsay purpose. Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.
Notes
Concurrence Opinion
(concurring). I agree with the majority that the Appellate Division should be affirmed, but on different grounds. Based on our existing case law, the subscriber information was admissible for the nonhearsay purpose of completing the narrative leading to defendant’s arrest. To the extent the court erroneously permitted use of the evidence beyond this limited purpose, the error was harmless. Therefore, I concur only in the result.
This Court has upheld the admission of evidence otherwise excludable for “the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant’s arrest” (People v Ludwig,
Here, the People argued, inter alia, that the primary purpose of admitting the subscriber information was to complete the narrative, and the trial testimony supports this argument. The People established at trial that the police obtained the number for the phone at issue by identifying which numbers Ms. Goree called during the robbery. From there, detectives obtained the subscriber information for that phone, and this information pointed them to Darnell Patterson. The detectives linked the name from the subscriber information to defendant, which then permitted the detectives to identify defendant as a suspect for the crime. As such, the subscriber information was admissible to explain the events leading to his arrest.
The majоrity opines, however, that this statement is a “piece of the puzzle” that the jury may use “in assessing the reliability of the victim’s [eyewitness] identification” and a basis for the inference the “defendant was the user of the phone” (majority op at 552-553). The majority concludes that this is an appropriate nonhearsay use for the statement, since it was introduced to show that the phone had some connection to the defendant and not that the phone belonged to Darnell Patterson (id. at 552). The majority essentially extends the narrative exception for the hearsay at issue here beyond an explanation of the police investigation and defendant’s capture, for the purpose of establishing that defendant was the user of the phone. Of course, if defendant was the user and not the subscriber, then the subsсription evidence was irrevelant to establish—circumstantially and inferentially—defendant’s criminal conduct. On the facts of this case, the subscriber would be irrevelant if that person were not the defendant. Indeed, the prosecutor went to great lengths to connect defendant to the person listed as the subscriber. The People’s evidence established that the subscriber name was defendant’s known aliаs, the subscriber’s date of birth was defendant’s, and the subscriber’s address was the defendant’s. Moreover, the court admitted the defendant’s tattoo only because it matched the subscriber’s name.
Order, insofar as appealed from, affirmed.