People v. Nashal

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered January 7, 2014, convicting defendant, after a jury trial, of grand larceny in the third degree and criminal possession of stolen property in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 2V2 to 5 years, unanimously affirmed.

The People established, through competent evidence, that defendant stole a jacket worth $3,995 and a sweater worth $795 from a department store, and thus established that the value of the stolen merchandise exceeded $3,000. The value was established by way of a properly authenticated business record, and there was no violation of the hearsay rule or the Confrontation Clause.

We find unavailing defendant’s assertion that the receipt should have been excluded because it was prepared solely for the purpose of litigation. First, the essential business record in this case is not the piece of paper, but the electronically stored information that the garments were selling for certain prices. The price information itself was clearly maintained for the store’s business purposes. The actual piece of paper introduced in evidence was simply a printout of the existing electronically stored information, displayed and memorialized in a convenient form. Second, even if the record was intended to be used in defendant’s criminal prosecution, the witness testified that the store makes records of this type in all instances of shoplifting, and “if there are other business reasons which require the records to be made, they should be admissible” (People v Foster, 27 NY2d 47 , 52 [1970]).

We also find that the store detective was competent to authenticate the record. A proper foundation for admission of a business record may be laid by a witness familiar with the practices and procedures of the particular business; the person who prepared the record need not testify (see People v Brown, 13 NY3d 332 , 341 [2009]; People v Kennedy, 68 NY2d 569 , 577 [1986]). Here, the store detective had sufficient familiarity with the store procedures regarding the creation of such receipts to lay a foundation for its admission (see People v Giordano, 50 AD3d 467 , 468 [1st Dept 2008], lv denied 10 NY3d 959 [2008]). The witness was clearly competent to state the unremarkable and familiar fact that when the code on an item is scanned, the computer reveals the item’s price, including any applicable sale price. There was no need for further explanation of how the computer system “functioned,” or any reason to believe that a salesperson could provide significantly different information.

The court properly declined to submit various lesser included offenses not requiring proof of value in excess of $3,000, because there was no reasonable view of the evidence, viewed most favorably to defendant, that the merchandise he stole did not meet that value threshold (see People v King, 102 AD3d 434 , 435-436 [1st Dept 2013], lv denied 20 NY3d 1100 [2013]). There was no evidence casting doubt on the accuracy of the price information received from the computerized cash register, or on the store detective’s testimony that the computer would reflect any applicable sale price. Defendant’s alternative scenarios are farfetched and speculative. Concur — Gonzalez, P.J., Friedman, Renwick, Moskowitz and Clark, JJ.