PEOPLE v. DARDEN (2016)

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, 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 U.S. 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 N.Y.2d 424 [1986] ).