Hearsay – business records

Last reviewed: September 2026.

People v Jones, 2018 NY Slip Op 00710 (4th Dept. 2018)

“First, the court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule … presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business” (People v Manges, 67 AD3d 1328, 1329 ; see generally CPLR 4518 ; CPL 60.10). Moreover, although the printout was initially admitted only for the limited purpose of establishing “that the statement was made,” the court thereafter instructed the jury that the printout was permitted to show that the person with the Social Security number tendered by defendant was already a customer at the bank, thereby allowing the jury to consider the printout for the truth of the matter asserted therein. As such, the People were still obligated to establish that the ” entrant was under a business duty to obtain and record the statement ’ ” (People v Patterson, 28 NY3d 544, 550 , quoting Hayes v State of New York, 50 AD2d 693, 693-694 , affd 40 NY2d 1044 ; see Matter of Leon RR, 48 NY2d 117, 122 ; People v McKinley, 72 AD2d 470, 476-477 ). The People failed to fulfill that foundational requirement here (see Manges, 67 AD3d at 1329; compare Patterson, 28 NY3d at 547-548; People v Ferone, 136 AD2d 282, 289-290 , lv denied 72 NY2d 859 ).

Second, the court improperly admitted an investigator’s testimony about the results of a search he ran in a credit bureau’s commercial database for email addresses and a telephone number contained in a cover letter that enclosed the counterfeit check defendant tried to cash. The People failed to establish the requisite foundation for this testimony inasmuch as the investigator did not testify that he “is familiar with the practices of company that produced the records at issue” and that he “generally relies upon such records” (People v Brown, 13 NY3d 332, 341 ; see People v Cratsley, 86 NY2d 81, 89 ).”

Jason’s original observation:

The world of business records, duties to impart and familiarity with the original entrants business practices.

Two different evidentiary failures in Jones

People v Jones, decided February 2, 2018, ordered a new trial on two counts. One problem concerned a bank printout. The other concerned an investigator’s testimony about a commercial database search. Neither was cured by describing the material as information kept on a computer.

The printout was initially received for a limited purpose. The jury was later allowed to use it as proof of the account information it contained. The prosecution had not supplied the necessary business-record foundation for that truth-of-content use.

The investigator’s familiarity with conducting a search did not establish familiarity with the database company’s record practices or regular reliance on the company’s records. Being able to retrieve information is different from supplying an evidentiary basis for accepting it.

Match the foundation to the use at each stage

Before offering a document, state the fact it is meant to establish. If the purpose is to show that a communication occurred, the analysis may differ from offering the communication to prove its assertions. The use made of the exhibit in argument and instructions must remain within the permitted purpose.

This matters outside criminal trials as well. A letter attached to a civil motion may show that a demand was made. If counsel then asks the court to accept the letter’s account of an event as true, a separate hearsay question arises. The Sin Medical scheduling-letter note supplies the contrasting nonhearsay use.

Do not assume a limiting label resolves the issue permanently. Review the proposed findings or instructions and the factual propositions in the memorandum. A document can be properly received for one purpose and improperly used for another.

Retrieval is not knowledge of creation

A witness who enters a search term may know exactly what appeared on the screen. That knowledge does not necessarily establish how the underlying records were collected, entered or maintained. Identify the source of the data and the foundation for the inference the proponent wants drawn.

And for those records that are obtained from a vendor, how does the receiving business use them? Are they incorporated into regular operations? Does the witness know about the record keeping practices of the other business? What is the connection between this exhibit and those practices? A purchased search result should not be treated as self-authenticating proof of every fact it shows.

The Manges note addresses the missing foundation for data in a bank system. The Brannon note addresses reliance on records originating elsewhere. Together they help distinguish system access from the knowledge needed to offer a record for its truth.

Preserve the specific objection

Jones found the objections timely and specific. An objection to the printout’s business-record foundation is different from an objection to the investigator’s knowledge of an outside company’s practices. Counsel should identify the actual defect so the trial court can rule on it.

The remedy also matters. Jones ordered a new trial; it did not dismiss the indictment as Manges had on its record. Do not assume every successful evidentiary challenge yields the same appellate result.

Historical note: Jones distinguishes a limited nonhearsay use from later truth-of-content use and rejects unsupported database testimony; CPLR 4518(a) remains the business-record framework.

For a civil motion directed at a defense, the Zarnoch note addresses the permitted use of evidence under CPLR 3211(b) and (c). A procedural route allowing exhibits does not supply a missing foundation for the particular record.

Connect to the Encyclopedia

Start with the CPLR 4518 business-records hub. Compare the evidentiary purpose, witness knowledge and result in these notes:

• Brannon: incorporated records and competing opinions
• Wheatley: mailing proof and notice compliance
• Yassin: police reports and double hearsay
• Sin Medical: letters offered for a nonhearsay purpose
• Etienne: the proof supporting overdue no-fault benefits

For help assessing evidence in a pending civil matter, contact the firm with the complete records, motion papers and any court order. This historical discussion is general information, not advice on a particular file.