People v. Darden

Appellate Division of the Supreme Court of New York

People v. Darden

142 A.D.3d 863, 38 N.Y.S.3d 149

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

DecidedSeptember 27, 2016

Docket1700 4607/10

StatusPublished

This text of 142 A.D.3d 863 (People v. Darden) 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

People v. Darden, 142 A.D.3d 863, 38 N.Y.S.3d 149 (N.Y. Ct. App. 2016).

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Opinion

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered November 14, 2011, convicting defendant, after a jury trial, of criminal trespass in the second degree, *864 petit larceny, and two counts of assault in the third degree, and sentencing him to four consecutive terms of one year, unanimously affirmed.

Defendant’s right of confrontation was not violated by the admission of a logbook entry, created by a nontestifying security guard at the homeless shelter where the events took place. Properly admitted as a business record, the logbook entry was not testimonial because it was not “procured with a primary purpose of creating an out-of-court substitute for trial testimony” (Michigan v Bryant, 562 US 344, 358 [2011]). The evidence established that such logbook entries were routinely made for the private security firm’s business purposes, regardless of whether an arrest or other unusual activity occurred.

The court properly denied defense counsel’s request for a missing witness instruction with regard to the guard, who was no longer employed by the security company, since he was neither available to the People nor within their control for purposes of a missing witness instruction (see People v Gonzalez, 68 NY2d 424 [1986]). Concur — Friedman, J.P., Andrias, Richter, Gische and Kahn, JJ.

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Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered November 14, 2011, convicting defendant, after a jury trial, of criminal trespass in the second degree, *864 petit larceny, and two counts of assault in the third degree, and sentencing him to four consecutive terms of one year, unanimously affirmed.

Defendant’s right of confrontation was not violated by the admission of a logbook entry, created by a nontestifying security guard at the homeless shelter where the events took place. Properly admitted as a business record, the logbook entry was not testimonial because it was not “procured with a primary purpose of creating an out-of-court substitute for trial testimony” (Michigan v Bryant, 562 US 344, 358 [2011]). The evidence established that such logbook entries were routinely made for the private security firm’s business purposes, regardless of whether an arrest or other unusual activity occurred.

The court properly denied defense counsel’s request for a missing witness instruction with regard to the guard, who was no longer employed by the security company, since he was neither available to the People nor within their control for purposes of a missing witness instruction (see People v Gonzalez, 68 NY2d 424 [1986]). Concur — Friedman, J.P., Andrias, Richter, Gische and Kahn, JJ.

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Bluebook (online)

142 A.D.3d 863, 38 N.Y.S.3d 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-darden-nyappdiv-2016.

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