People v. Guidice — 83 N.Y.2d 630

Majority

p. 630

[634 NE2d 951, 612 NYS2d 350]

The People of the State of New York, Respondent, v Anthony Guidice, David Guidice and James Smith, Appellants.

Argued March 24, 1994;

decided May 12, 1994

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POINTS OF COUNSEL

Kim P. Bonstrom, New York City, Judd Burstein and Marc Fernich for appellants.

I. It was an abuse of discretion as a matter of law for the Trial Judge to admit the electronic surveillance evidence without a proper foundation. (People v Ely, 68 NY2d 520 ; People v McGee, 49 NY2d 48 ; People v Washington, 46 NY2d 116 ; People v Brown, 80 NY2d 729 ; People v Kennedy, 68 NY2d 569 ; People v Foster, 27 NY2d 47 ; People v D’Agostino, 120 Misc 2d 437 .) II. Because there was insufficient proof that defendants manifested any community of purpose or shared intent in New York County, the trial court lacked geographical jurisdiction over them. (People v Moore, 46 NY2d 1 ; People v Sosnik, 77 NY2d 858 ; People v Ribowsky, 77 NY2d 284 ; People v Nieves, 135 AD2d 579 ; People v La Belle, 18 NY2d 405 ; People v Benzinger, 36 NY2d 29 ; People v Ligouri, 284 NY 309 ; People v Akptotanor, 158 AD2d 694 ; People v King, 61 AD2d 1035 ; People v Topino, 151 Misc 2d 764 .) III. Anthony Guidice’s intercepted telephone conversations, which were the only evidence connecting Guidice to the alleged assault, constituted circumstantial, not direct evidence; as a result, the court’s refusal to give a circumstantial evidence charge was reversible error. (People v Bretagna, 298 NY 323 , 336 US 919 ; Pease v Smith, 61 NY 477 ; People v Duffy, 124 AD2d 258 ; People v Williams, 121 AD2d 145 ; People v Sanchez, 61 NY2d 1022 .) IV. Tom Meyer’s testimony, which was the only evidence regarding his supposed injuries, provided no objective indicia from which the jury could properly conclude that Meyer sustained "physical injury” or "substantial pain,” as required under Penal Law § 120.05. (People v Oquendo, 134 AD2d 203 ; Matter of Philip A., 49 NY2d 198 ; Carella v California, 491 US 263 ; People v Brown, 145 AD2d 301 ; People v Carney, 179 AD2d 818 ; People v Rolando, 168 AD2d 578 ; People v Franklin, 149 AD2d 617 ; People v Holden, 148 AD2d 635 ; People v Foster, 162 AD2d 703 .) V. The proof at trial demonstrated that an unnamed and unindicted person delivered the blow which allegedly caused physical injury to the complainant; as a result, the People’s proof affected a constructive amendment of the "theory of prosecution” reflected in the indictment. (People v Grega, 72 NY2d 489 ; People v Boyd, 59 AD2d 558 ; People v Hill, 102

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Misc 2d 814 ; People v Powell, 153 AD2d 54 ; People v Rodriguez, 164 AD2d 832 .)

Robert M. Morgenthau, District Attorney of New York County, New York City (Hilary Hassler and James M. McGuire of counsel), for respondent.

I. The trial court correctly ruled that the wiretap linesheets were admissible as business records, and the only narrow objection defendants raised to their admission is meritless. (People v Ely, 68 NY2d 520 ; People v Jackson, 76 NY2d 908 ; People v George, 67 NY2d 817 ; People v Chisholm, 174 AD2d 629 ; People v Mountain, 66 NY2d 197 ; People v Lindsay, 72 NY2d 843 ; People v Liccione, 50 NY2d 850 ; People v Sugden, 35 NY2d 453 ; Johnson v Lutz, 253 NY 124 .) II. Defendants were properly tried in New York County. (People v Botta, 100 AD2d 311 ; People v Dekle, 56 NY2d 835 ; People v Ribowsky, 77 NY2d 284 ; People v Moore, 46 NY2d 1 ; People v McLaughlin, 80 NY2d 466 .) III. The People adduced legally sufficient evidence establishing the element of "physical injury”. (People v Rojas, 61 NY2d 726 ; People v Oquendo, 134 AD2d 203 ; Matter of Philip A., 49 NY2d 198 ; People v McDowell, 28 NY2d 373 ; People v Greene, 70 NY2d 860 ; People v Malave, 158 AD2d 435 ; People v Harper, 145 AD2d 933 , 75 NY2d 313 ; People v Williams, 105 AD2d 465 ; People v Pope, 174 AD2d 319 ; People v Tejeda, 165 AD2d 683 , 77 NY2d 883 .) IV. The jury was properly permitted to consider whether defendants were liable as accomplices of an unidentified coparticipant in the assault. (People v Grega, 72 NY2d 489 ; People v Ralston, 112 AD2d 758 ; People v Valerio, 64 AD2d 516 ; People v Doles, 165 AD2d 689 ; People v McEachin, 188 AD2d 433 ; People v Kimbrough, 155 AD2d 935 ; People v Katz, 209 NY 311 ; People v Bliven, 112 NY 79 ; People v Duncan, 46 NY2d 74 , 442 US 910 .) V. Justice Galligan correctly denied defendant Anthony Guidice’s request for a circumstantial evidence charge. (People v Silva, 69 NY2d 858 ; People v Ruiz, 52 NY2d 929 ; People v Barnes, 50 NY2d 375 ; People v Rumble, 45 NY2d 879 ; People v Licitra, 47 NY2d 554 ; People v Daddona, 81 NY2d 990 ; People v Sanchez, 61 NY2d 1022 ; People v Bretagna, 298 NY 323 , 336 US 919 ; People v Johnson, 65 NY2d 556 ; People v Benzinger, 36 NY2d 29 .)

OPINION OF THE COURT

The primary issue on this appeal is whether certain "line-sheet” entries made in the course of a police surveillance opera

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tian are admissible in evidence under the business records exception to the hearsay rule.

On August 7, 1989, defendant David Guidice was involved in a physical altercation with a co-worker, Tom Meyer, at their construction jobsite. David left the work site and called his father, defendant Anthony Guidice, for help. Anthony contacted his nephew, defendant James Smith, and instructed him to assist David in exacting retribution. Smith and an unidentified, unapprehended male, described as a blonde bodybuilder, arrived at the construction site in a two-tone Lincoln Continental. David pointed out Meyer. Smith punched Meyer in the face and the unidentified male hit Meyer in the arm with a baseball bat, after which Meyer fled.

Defendants were convicted, after a jury trial, of assault in the second degree. The prosecution’s sole witness at trial was Meyer. The People additionally offered tape recordings of six intercepted telephone conversations involving the defendants. Because the conversations were recorded pursuant to electronic surveillance in an unrelated investigation involving numerous monitoring agents, the People proposed to establish the unbroken chain of custody by admitting, as business records, certain "linesheets” prepared by the monitoring agent at the time each phone conversation was intercepted. These linesheets were entries made by monitoring agents contemporaneously with each intercepted phone conversation. The linesheets contained the number of the master tape, the date it was used, the sequential number of the call, the times when the conversations began and ended, and the corresponding counter numbers on the recorder.

Defense counsél made an unsuccessful pretrial application to preclude the linesheets, arguing:

"The issue is whether or not the line sheets are admissible as business records and I submit they are not for a very simple reason. They are not records of regularly conducted activity because they are documents that are prepared for the sole purpose of litigation.”

The Appellate Division affirmed the judgments of conviction, and we now affirm.

Defendants’ contention that the electronic surveillance tapes were admitted without a proper evidentiary foundation must be rejected. We conclude that the linesheets were prop

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erly admitted as business records under CPLR 4518. That section provides:

"Any 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].)

There is no question that law enforcement agencies constitute "businesses” for purposes of the rule (see, People v Foster, 27 NY2d 47 , 52). The essence of the business records exception to the hearsay rule is that "records systematically made for the conduct of a business * * * are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise” (People v Kennedy, 68 NY2d 569 , 579).

In Foster (supra), the trial court admitted in evidence police "speedometer deviation records” that were made at regularly scheduled intervals for the purpose of testing the accuracy of police speedometers used in clocking vehicles. This Court approved of their reception as business records, stating that while it was foreseeable that they might later be used for litigation purposes, such was not their sole purpose when made (id.; see also, Farrell, 58 NY2d 637 , 638).

Applying the aforementioned principles, we conclude that the linesheets were records made in the ordinary course of police business. We note that the linesheets served an important administrative function in the daily conduct of a police surveillance operation; they were required to be made pursuant to a court order; their purpose was to maintain an inventory of the tapes and to safeguard them against tampering; and they were included in the progress reports that were filed regularly with the Judge supervising the wiretap order. Finally, the fact that their preparation was incidental to a police surveillance operation does not make them inadmissible (see, Foster, supra; see also, People v Farrell, 58 NY2d 637 , supra).

Defendants’ assertion that the People’s proof failed to

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establish venue in New York County lacks merit. Whenever a defendant commits an act in a county sufficient to establish an element of a charged offense, codefendants may likewise be tried in that county (CPL 20.40 [1] [a]; see also, People v Ribowsky, 77 NY2d 284 , 292; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 20.40, at 107). Because defendant Anthony Guidice formulated the requisite criminal intent to commit assault in New York County, venue was properly laid there (CPL 20.40 [1]).

The trial court did not err in refusing to give a circumstantial evidence charge with respect to defendant Anthony Guidice. A circumstantial evidence charge is required where the evidence against a defendant is "wholly circumstantial” (People v Silva, 69 NY2d 858 , 859). A defendant’s statement is considered direct evidence if it constitutes "a relevant admission of guilt” (People v Rumble, 45 NY2d 879 , 880; see, People v Licitra, 47 NY2d 554 , 558-559). Here, Anthony Guidice’s statements, among others, that he "sent two guys to break [Meyer’s] legs”, and that he "put him in the hospital”, amount to acknowledgments that he solicited, requested, or commanded the attack with intent to cause physical injury under Penal Law § 20.00. As the evidence against defendant Anthony Guidice was not wholly circumstantial, a circumstantial evidence charge was not required.

We must also reject defendants’ challenge to the sufficiency of the evidence relating to Meyer’s sustaining "physical injury” or "substantial pain” within the meaning of Penal Law § 120.05 and as defined by Penal Law § 10.00 (9). Generally, these are questions for the trier of fact (People v Rojas, 61 NY2d 726 , 727). Lack of medical treatment is but a factor to consider in resolving such issues (People v Pope, 174 AD2d 319 , 321, lv denied 78 NY2d 1079 ), for pain is subjective and different persons tolerate it differently (Matter of Philip A., 49 NY2d 198 , 200). The jury was entitled to credit Meyer’s testimony that he lost sensation in his arm, that it became discolored and swollen, and that he suffered substantial pain as the result of being struck with the baseball bat. The jury was also entitled to believe Meyer’s testimony that the absence of medical intervention was due to his subjective ability to withstand pain and/or to his lack of medical insurance.

Finally, defendants’ assertion that the People impermissibly constructively amended the indictment by advancing a new theory at trial — that defendants acted with an unappre

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hended fourth man — must also be rejected. The People are not required to specify in an indictment whether a defendant is being charged as a principal or as an accomplice. For charging purposes, the distinction between principal and accomplice is academic.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed.

Cases cited

People v. Ely 68 NY2d 520 N.Y. 1986-12-18 p. 632, p. 633
People v. McGee 49 NY2d 48 N.Y. 1979-12-17 p. 632
People v. Washington 46 NY2d 116 N.Y. 1978-12-07 p. 632
People v. Brown 80 NY2d 729 N.Y. 1993-02-18 p. 632
People v. Kennedy 68 NY2d 569 N.Y. 1986-12-19 at 579 p. 632, p. 635
People v. Foster 27 NY2d 47 N.Y. 1970-07-01 at 52 p. 632, p. 635
People v. D'Agostino 120 Misc 2d 437 Monroe Cty. Ct. 1983-08-05 p. 632
People v. Moore 46 NY2d 1 N.Y. 1978-11-30 p. 632, p. 633
People v. Sosnik 77 NY2d 858 N.Y. 1991-02-14 p. 632
People v. Ribowsky 77 NY2d 284 N.Y. 1991-02-14 at 292 p. 632, p. 633, p. 636
People v. Nieves 135 AD2d 579 N.Y. App. Div. 1987-12-07 p. 632
People v. La Belle 18 NY2d 405 N.Y. 1966-11-29 p. 632
People v. Benzinger 36 NY2d 29 N.Y. 1974-12-20 p. 632, p. 633
People v. Ligouri 284 NY 309 N.Y. 1940-12-04 p. 632
People v. Akptotanor 158 AD2d 694 N.Y. App. Div. 1990-02-26 p. 632
People v. Topino 151 Misc 2d 764 N.Y. Sup. Ct. 1991-07-29 p. 632
People v. Bretagna 298 NY 323 N.Y. 1949-01-13 p. 632, p. 633
Pease v. Smith 61 NY 477 N.Y. Comm'n App. p. 632
People v. Duffy 124 AD2d 258 N.Y. App. Div. 1986-10-09 p. 632
People v. Williams 121 AD2d 145 N.Y. App. Div. 1986-12-19 p. 632
People v. Sanchez 61 NY2d 1022 N.Y. 1984-03-29 p. 632, p. 633
People v. Oquendo 134 AD2d 203 N.Y. App. Div. 1987-11-17 p. 632, p. 633
In re Philip A. 49 NY2d 198 N.Y. 1980-01-08 at 200 p. 632, p. 633, p. 636
Carella v. California 491 US 263 SCOTUS 1989-06-15 p. 632
People v. Brown 145 AD2d 301 N.Y. App. Div. 1988-12-01 p. 632
People v. Carney 179 AD2d 818 N.Y. App. Div. 1992-01-27 p. 632
People v. Rolando 168 AD2d 578 N.Y. App. Div. 1990-12-17 p. 632
People v. Holden 148 AD2d 635 N.Y. App. Div. 1989-03-20 p. 632
People v. Foster 162 AD2d 703 N.Y. App. Div. 1990-06-25 p. 632
People of State of New York v. Grega 72 NY2d 489 N.Y. 1988-10-25 p. 632, p. 633
People v. Powell 153 AD2d 54 N.Y. App. Div. 1989-12-20 p. 633
People v. Jackson 76 NY2d 908 N.Y. 1990-10-16 p. 633
People v. George 67 NY2d 817 N.Y. 1986-03-20 p. 633
People v. Mountain 66 NY2d 197 N.Y. 1985-10-24 p. 633
People v. Lindsay 72 NY2d 843 N.Y. 1988-06-30 p. 633
People v. Liccione 50 NY2d 850 N.Y. 1980-06-03 p. 633
People v. Sugden 35 NY2d 453 N.Y. 1974-12-20 p. 633
Johnson v. Lutz 253 NY 124 N.Y. 1930-02-11 p. 633
People v. Botta 100 AD2d 311 N.Y. App. Div. 1984-04-02 p. 633
People v. Dekle 56 NY2d 835 N.Y. 1982-06-08 p. 633
People v. McLaughlin 80 NY2d 466 N.Y. 1992-12-16 p. 633
People v. Rojas 61 NY2d 726 N.Y. 1984-01-12 at 727 p. 633, p. 636
People v. McDowell 28 NY2d 373 N.Y. 1971-05-13 p. 633
People v. Greene 70 NY2d 860 N.Y. 1987-11-24 p. 633
People v. Malave 158 AD2d 435 N.Y. App. Div. 1990-02-27 p. 633
People v. Harper 75 NY2d 313 N.Y. 1990-02-20 p. 633
People v. Pope 174 AD2d 319 N.Y. App. Div. 1991-06-04 at 321 p. 633, p. 636
People v. Valerio 64 AD2d 516 N.Y. App. Div. 1978-07-11 p. 633
People v. Doles 165 AD2d 689 N.Y. App. Div. 1990-09-13 p. 633
People v. McEachin 188 AD2d 433 N.Y. App. Div. 1992-12-29 p. 633
People v. Bliven 112 NY 79 N.Y. 1889-01-15 p. 633
People v. Duncan 46 NY2d 74 N.Y. 1978-12-07 p. 633
People v. Silva 69 NY2d 858 N.Y. 1987-03-24 at 859 p. 633, p. 636
People v. Ruiz 52 NY2d 929 N.Y. 1981-02-10 p. 633
People v. Barnes 50 NY2d 375 N.Y. 1980-06-03 p. 633
People v. Rumble 45 NY2d 879 N.Y. 1978-10-24 at 880 p. 633, p. 636
People v. Licitra 47 NY2d 554 N.Y. 1979-07-09 at 558-559 p. 633, p. 636
People v. Farrell 58 NY2d 637 N.Y. 1982-11-16 at 638 p. 635