PEOPLE v. CRUZ (2001)

Judgment, Supreme Court, New York County (Budd Goodman, J. at fitness hearing;  Nicholas Figueroa, J. at trial and sentence), rendered February 11, 1998, convicting defendant of two counts of criminal possession of stolen property in the fourth degree, one count of petit larceny and one count of criminal possession of stolen property in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 1 3/434 to 3 1/212 years (two terms) and 9 months (two terms), respectively, unanimously modified, on the law, to vacate the convictions as to the criminal possession of stolen property counts and dismiss these counts, and otherwise affirmed.

 The trial court improperly admitted the bank record reporting the loss of the subject credit cards into evidence.   Since the owner of the credit cards had no business duty to make the report, the business records exception to the hearsay rule did not apply.   Defendant's conviction on the criminal possession of stolen property counts must therefore be reversed since it was based on this inadmissible hearsay (People v. Edmonds, 251 A.D.2d 197, 674 N.Y.S.2d 361, lv. denied 92 N.Y.2d 924, 680 N.Y.S.2d 465, 703 N.E.2d 277).   Further, the error cannot be considered harmless, and indeed the counts must be dismissed, inasmuch as there is no other admissible evidence to prove an essential element of the crime of criminal possession of stolen property, i.e., that the credit cards were stolen.