People v. Parsons

84 A.D.2d 510, 443 N.Y.S.2d 159, 1981 N.Y. App. Div. LEXIS 15526

Opinions

Judgment, Supreme Court, New York County (Davis, J.), rendered January 10, 1980 convicting defendant upon his plea of guilty of attempted robbery in the third degree and sentencing him as a second felony offender to a term of IV2 to 3 years, is affirmed. The question that divides the court relates to the authentication of the record of defendant’s prior conviction in the Puerto Rican court as evidence of a predicate felony requiring a second felony offender sentence in the New York State court. The record of conviction is obviously a record of the Puerto Rico Superior Court bearing the seal of the court and stating the defendant’s conviction on a plea of guilty with appropriate recitals, signed by a Judge and by a “secretario,” obviously a clerk,

Footnotes

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* with a stamp certifying that the document is a true and faithful copy of the original which appears in the record and is issued for official use for the New York court, signed by another clerk, and apparently some assistant clerks. The objection is that CPLR 4540 (subd [c]) requires in the case of a certification of an officer in another jurisdiction that it shall be accompanied by a certificate that that officer has legal custody of the record, and that his signature is believed to be genuine, which certificate should be made by a Judge of a court of record, i.e., an “exemplified” copy. This boot-strap requirement that the clerk certify that the document bearing this seal of the court and signed by the Judge is genuine, and that the Judge certify that the clerk is the custodian and that his signature is genuine, is obviously highly technical. The superfluity of this technicality is recognized in modem developments in the law of evidence. Thus both subdivision (1) of rule 902 of the Federal Rules of Evidence and section 902 (subd [a], par [1], cl [C]) of the New York Proposed Code of Evidence (1980) dispense with the requirement of extrinsic evidence of authenticity with respect to documents under official seals of various sister governments, including the Commonwealth of Puerto Rico. (Indeed even with respect to certain foreign public documents requiring more elaborate authentication, subdivision [3] of the Federal rule 902 and section 902 [subd (a), par (3)] of the proposed code both provide that if reasonable opportunity has been given to investigate the authenticity and accuracy of the documents, the court may for good cause shown permit the documents to be received without final certification.) The Puerto Rican authorities are presumably more familiar with the Federal Rules of Evidence than they are with the peculiar requirements of the New York statute. The document is in a form which would be admissible under both the Federal Rules and the New York Proposed Code. It is quite customary, even under New York’s present rules, where there is no real question of authenticity of the documents, for attorneys to permit the use of documents not authenticated to the last iota of the statutory requirement. Thus office copies of letters are frequently received in evidence; certified but not exemplified copies of out-of-State documents and of notarial certificates, etc., are frequently received without objection. In the present case, when these documents were first offered in evidence, the defendant’s attorney stated that he had no objection, and the documents were received in evidence. Six weeks later, at the next session of the predicate felony hearing, the attorney raised the objection of failure to comply with CPLR 4540 (subd [c]). But as the documents had already been received in evidence, the court refused to strike them. The District Attorney specifically asked whether there was any good faith basis for saying that the signatures were not genuine. Defendant’s attorney did not suggest that they were not. (Even now there is no such suggestion.) Once the documents had been received in evidence without objection, it was discretionary with the court whether to permit the defendant to withdraw his waiver of objection or to strike the documents. In the absence of any hint that the documents were not genuine, we do not think it was an abuse of discretion for the court to refuse to permit the defendant to object to the documents or to refuse to strike them six weeks after they had been received in evidence without objection. The provision of CPL 470.05 (subd 2) referred to by our dissenting brother is merely a definition of how “[f]or purposes of appeal, a question of law * * * is presented”; it is not a limitation on the discretion of the trial court. Nor is the question one of proof beyond a reasonable doubt; if the document was properly retained in evidence, there was proof beyond a reasonable doubt. The question is more properly one of the trial court’s discretion to refuse to permit the withdrawal of a waiver of objection, and to refuse to strike documents received in evidence without objection, as to which the rule is the same in both civil and criminal cases. The defendant pleaded guilty on February 14,1979. He was sentenced on January 10,1980. Thus it is now two and one-half years since the plea of guilty. Dispute about this pointless technicality has delayed the progress of the case and the due application of the appropriate criminal sanctions long enough. Concur — Markewich, J. P., Lupiano and Silverman, JJ.

Bloom and Fein, JJ., dissent in a memorandum by Fein, J., as follows.

Velasquez, Spanish & English Dictionary (Follett, 1966): “Clerk of a court of justice.. .secretario de tribunal.”