SCOTT MAWHINEY v. << (2026)

OPINION AND ORDER

Calendar Date:  May 12, 2026

Appeal from a judgment of the County Court of Broome County (Joseph Cawley, J.), rendered February 26, 2025, upon a verdict convicting defendant of the crimes of attempted murder in the first degree, attempted murder in the second degree, aggravated assault upon a police officer, assault in the first degree, criminal use of a firearm in the first degree, assault in the second degree (two counts), criminal possession of a weapon in the fourth degree and harassment in the second degree.

The facts of this case are familiar to this Court, having previously remitted the matter for a new trial upon finding that County Court abused its discretion in precluding the testimony of defendant's proposed expert on the issue of his alleged intoxication at the time of his commission of the underlying acts (220 AD3d 1055 [3d Dept 2023] ).¹  In brief, on the evening of June 23, 2021, defendant was involved in a domestic disturbance which resulted in a law enforcement response to his home.  Upon the arrival of law enforcement, defendant utilized a shotgun and opened fire on the responding state trooper causing either a fragment of the projectile or shrapnel to strike the trooper's arm, resulting in a lasting injury.  Relevant for purposes of this appeal, during the ensuing investigation, a preliminary investigation report was prepared and distributed via email to police personnel detailing the incident.

Defendant was thereafter charged in a nine-count indictment with various crimes and, after trial, found guilty of attempted murder in the first degree, aggravated assault upon a police officer, criminal possession of a weapon in the fourth degree and harassment in the second degree.  Defendant was sentenced to a prison term of 30 years to life on the top count of attempted murder in the first degree, with lesser concurrent prison terms and applicable periods of postrelease supervision on the remaining convictions.  As stated above, we then reversed the judgment of conviction and remitted the matter for a new trial.  Therein, we indicated that, upon remittal, “[d]efendant must be afforded an opportunity to establish the proper foundation to qualify the email as a business record within the meaning of CPLR 4518 and, if defendant is successful in that effort, the fact that its author lacked personal knowledge of defendant's intoxication goes to the weight, not the admissibility, of the statements therein” (id. at 1060).  Upon remittal, County Court held a hearing on the admissibility of that document and determined that it did not qualify as a business record because defendant failed to establish that the source of the relevant statement that “[he] was highly intoxicated” was someone with a duty to report.  The matter proceeded to retrial and defendant was convicted on all counts and similarly sentenced to a prison term of 30 years to life for his conviction of attempted murder in the first degree, with lesser concurrent prison terms and certain periods of postrelease supervision on the remaining convictions.  Defendant appeals.

Initially, we reject defendant's assertion that County Court “engrafted an additional requirement” into CPLR 4518(a) and find that the court properly deemed the preliminary investigation report inadmissible.  “Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule,” such as the exception for the admission of business records (Matter of Country–Wide Ins. Co. v Lobello, 186 AD3d 1213, 1215 [2d Dept 2020] [internal quotation marks and citation omitted];  see CPLR 4518[a];  Gallt v. Nelk, 240 AD3d 1286, 1289 [4th Dept 2025] ).  Thereunder, “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518[a] ).  “[T]he proponent of the record must first demonstrate that it was within the scope of the entrant's business duty to record the act, transaction or occurrence sought to be admitted.  [However,] this satisfies only half the test.  In addition, each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” (Matter of Leon RR., 48 N.Y.2d 117, 122 [1979] [citations omitted];  see Matter of Messiah S.E. [Micquella E.], 237 AD3d 698, 699 [2d Dept 2025];  Dawn VV. v. State of New York, 47 AD3d 1048, 1050 [3d Dept 2008] ).

It is uncontested that the drafter of the report, a lieutenant with the State Police, did not observe the events described therein or, more specifically, defendant's level of intoxication that night.  The inquiry thus distills to whether defendant, as the proponent of the report, sufficiently demonstrated that the source of the statement that he was “highly intoxicated” was an individual with a duty to report such information.  We find that defendant failed to meet this burden.  The hearing testimony demonstrated that the lieutenant drafted the report based upon information received from numerous sources.  However, he was unable to identify who had reported defendant to be highly intoxicated.  Defendant's argument that, because the scene had been secured, the statement must have come from a responding officer's personal observations is entirely speculative, as nothing in the language of the report itself or the record confirms that an officer was the source of the statement.  It is possible that the clause was included based upon defendant's fiancée's description of defendant as “drunk as a skunk” when making a 911 call that evening.  She, as opposed to responding law enforcement, had no business duty to report (see Matter of Emily GG. v. India HH., 248 AD3d 1467, 1469 [3d Dept 2026];  compare People v. Ruff, 185 A.D.2d 454, 457–458 [3d Dept 1992], affd 81 N.Y.2d 330 [1993], with People v. Morgan, 174 A.D.2d 1034, 1034 [4th Dept 1991], lv denied 78 N.Y.2d 971 [1991] ).  Because defendant did not meet this foundational requirement by demonstrating that “the initial declarant ․ [was] acting within the course of regular business conduct,” he failed to demonstrate the admissibility of the report, as well as the specific statement at issue, pursuant to the business records exception (Matter of Leon RR., 48 N.Y.2d at 122;  see CPLR 4518[a];  Wasilewska v. Long Is. Compost Corp., 234 AD3d 802, 804 [2d Dept 2025];  People v. Morrow, 204 A.D.2d 356, 356 [2d Dept 1994] ).²

It is true that “if the [declarant] was not under a business duty to impart the information, but the entrant was under a business duty to obtain and record the statement, the entry is admissible to establish merely that the statement was made but another hearsay exception is necessary in order to receive the statement for its truth” (People v. Patterson, 28 NY3d 544, 551 [2016] [internal quotation marks, brackets, ellipsis and citation omitted] ).  Nevertheless, defendant seeks to admit this statement for its hearsay purpose and has not claimed that the statement could be admitted pursuant to a different exception to the rule against hearsay (cf.  People v. Sabirov, 184 AD3d 714, 716 [2d Dept 2020];  compare People v. Hunter, 244 AD3d 1239, 1240 [2d Dept 2025], lv denied 45 NY3d 972 [2026] ).  Consequently, we find the preliminary investigation report to have been properly excluded (see generally People v. Gannon, 174 AD3d 1054, 1061 [3d Dept 2019], lv denied 34 NY3d 980 [2019] ).

Garry, P.J., Pritzker, Reynolds Fitzgerald and Corcoran, JJ., concur.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant did not previously, nor does he currently, assert that he did not commit the underlying acts.  Rather, he has consistently argued that his intoxication rendered him unable to form the requisite intent for the crimes of which he was convicted.

2.   To essentially claim that County Court was bound to admit the report, defendant relies upon this Court's indication in our prior decision that the lieutenant's lack of personal knowledge as to defendant's intoxication “goes to the weight, not the admissibility, of the statements” (People v. Mawhiney, 220 AD3d at 1060).  Nevertheless, as we made clear previously, defendant was first required to establish the admissibility of the report as a business record, which he failed to do.  Therefore, such argument is misplaced.

Powers, J.