AD1 order dated March 5, 2015, affirming judgment of conviction. Decision below: 128 AD3d 424, 9 NYS3d 30. Fahey, J., granted leave July 13, 2015.

ISSUES PRESENTED: Whether it was proper to admit, as circumstantial evidence of defendant’s identity as the purchaser of the phone, authenticated records that the purchaser of the pre-paid cell phone, linked to the crime, supplied pedigree information linked the defendant. (Assigned counsel: Seymor James, Jr., Legal Aid Society Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

Issue: Whether the subscriber information was hearsay, because it was being admitted for its truth. 

 

Held: The majority of the Court (all except Judge Rivera), concluded that the subscriber information had not been admitted for its truth: the evidence was not offered to prove that defendant had activated the prepaid cell phone account, but to show the jury that “it was not coincidental that someone – regardless of who – provided pedigree information associated with defendant in activating the cell phone” Slip Op. at 12. The subscriber information, by the majority’s reasoning, was not admitted for its truth, “but for the jury to consider as a piece of the puzzle ... that the date of birth given by defendant when arrested matched that in the subscriber information, that the address given in the subscriber information was associated with defendant in police databases, and that defendant had the name Darnell tattooed on his hand -- that gave rise to an inference that defendant was the user of the phone, although perhaps not the subscriber...” Slip Op. at 12-13.

 

Judge Rivera, concurring in the result, would have held that the subscriber information would have been admissible for the non-hearsay purpose of completing the narrative. 

 

CAL Observes: The majority weakens the definition of hearsay, without any stated justification A party can offer a statement for its truth, so long as its truth is used circumstantially and not as direct evidence, the Court ruled. Here, for example, the fact that the subscriber had given defendant’s address was not offered for the truth of the fact that the subscriber lived at that address, but, by the Court’s reckoning, merely as a puzzle piece. The address connected defendant to the phone, because it was one that was associated with defendant in police databases. The Court appears to close its eyes to the fact that the address is only a “piece of the puzzle” if it’s true and offered for its truth: i.e., it only connects defendant to the phone if the phone’s subscriber lived at that address.