Guido v. Kuster

Appellate Division of the Supreme Court of New York

Guido v. Kuster

36 A.D.2d 727, 320 N.Y.S.2d 261

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 8, 1971

StatusPublished

This text of 36 A.D.2d 727 (Guido v. Kuster) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Guido v. Kuster, 36 A.D.2d 727, 320 N.Y.S.2d 261 (N.Y. Ct. App. 1971).

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Opinion

[728]*728Rahin, P. J., Hopkins, Martuscello and Latham, JJ., concur; Munder, J., concurs, with the following separate memorandum: It is my view that the police accident report was not hearsay in the context of this ease. It was offered not for the truth of facts contained in it, hut on cross-examination to impeach the plaintiff father by showing he had failed to report what he claimed or what he could reasonably be expected to report. The report was not offered as a testimonial assertion and thus the hearsay rule has no application (Richardson, Evidence [9th ed.], § 209; see, also, §§ 206, 211). However, I believe it was error to admit it into evidence without a proper foundation being laid. This could have been done by defendant calling the police officer who prepared the report to testify concerning its preparation, e.g., who was present, what was said and what if anything was omitted from the report.

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[728]*728Rahin, P. J., Hopkins, Martuscello and Latham, JJ., concur; Munder, J., concurs, with the following separate memorandum: It is my view that the police accident report was not hearsay in the context of this ease. It was offered not for the truth of facts contained in it, hut on cross-examination to impeach the plaintiff father by showing he had failed to report what he claimed or what he could reasonably be expected to report. The report was not offered as a testimonial assertion and thus the hearsay rule has no application (Richardson, Evidence [9th ed.], § 209; see, also, §§ 206, 211). However, I believe it was error to admit it into evidence without a proper foundation being laid. This could have been done by defendant calling the police officer who prepared the report to testify concerning its preparation, e.g., who was present, what was said and what if anything was omitted from the report.

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Bluebook (online)

36 A.D.2d 727, 320 N.Y.S.2d 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guido-v-kuster-nyappdiv-1971.