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People v. Ortega

November 23, 2010

NO. 162 THE PEOPLE & C., RESPONDENT,
v.
OLDALYS ORTEGA, APPELLANT.
NO. 194 THE PEOPLE & C., RESPONDENT,
v.
MAURICE BENSTON, APPELLANT.



The opinion of the court was delivered by: Lippman, Chief Judge

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The common issue presented by these appeals is whether certain statements appearing in medical records were properly admitted at trial as relevant to diagnosis and treatment under the business records exception to the hearsay rule. We find no reversible error in either case and uphold the convictions.

Defendant, who was without another place to live, had been residing in the spare bedroom in complainant's apartment, at her invitation. Although their relationship was platonic at that time, they had been involved in a romantic relationship many years prior, beginning when complainant was 14 years old and lasting until she was 20 or 21.*fn1 Defendant paid complainant a portion of the rent, but she saved the money he gave her and planned to return it to him when he was able to move out.

On October 3, 2004, defendant informed complainant that he had taken five dollars in quarters from her coin purse for laundry and had replaced them with a five dollar bill. Complainant, upset because she suspected defendant had been going through her personal belongings, asked him to move out. Defendant became angry and threatened to kill complainant. He assaulted her and choked her -- using first a scarf and then a leather belt. Complainant was able to free herself and called 911. After defendant fled the apartment, complainant finished packing his belongings and brought them to his brother's house. By the time complainant returned to her apartment, the police had arrived. One of the officers discovered defendant crouched in a corner of complainant's apartment. Defendant was then arrested and complainant was taken to the hospital.

Complainant reported to medical personnel that she had been strangled by an old boyfriend and that he had used a black leather belt. She was diagnosed by the attending physician with "domestic violence [and] asphyxiation." Prior to the introduction of the medical records at trial, defense counsel moved to redact, among other things, references to domestic violence, to the perpetrator's status as a former boyfriend and to the existence of a safety plan for complainant. The court ordered certain portions of the records to be redacted --specifically, any references to a history of abuse and to statements that complainant had asked the perpetrator to leave her home and that she had filed a complaint against him. The court did, however, permit references to domestic violence, the perpetrator's relationship to complainant, the description of the weapon and the existence of a safety plan. The court also denied defendant's motion in limine to preclude the attending physician from making repeated references to "domestic violence," instead requiring defense counsel to make specific objections if and when necessary.

In addition to the charges stemming from the October 3 incident, defendant was also indicted on charges pertaining to three subsequent episodes. On February 12, 2005, defendant, in violation of an order of protection, telephoned complainant repeatedly*fn2 and showed up outside the door to her apartment. Defendant allegedly caused a disturbance by kicking complainant's door and yelling for her male houseguest to leave the apartment. On February 16, 2005, defendant again approached complainant in violation of an order of protection by meeting her on the street when she got off the bus on her way home from work. During this encounter, defendant allegedly asked complainant not to testify against him and threatened to kill her. The following morning, defendant was waiting for complainant outside her apartment, again in violation of an order of protection, and accompanied her part of the way to work until she was able to elude him at a subway station. Defendant allegedly told her that he had had a razor with him the night before and thought about killing her and killing himself.

Defendant was acquitted of attempted murder in the second degree, but was convicted of assault in the second degree, attempted assault in the second degree, criminal possession of a weapon in the fourth degree, four counts of criminal contempt in the first degree, two counts of criminal contempt in the second degree, intimidating a victim or witness in the third degree, aggravated harassment in the second degree and harassment in the second degree.

The Appellate Division affirmed, finding that it was a proper exercise of discretion for the court to allow limited references in medical records and testimony to the effect that complainant "was diagnosed as having been subjected to domestic violence involving a former boyfriend," as those references were relevant to the proposed treatment (70 AD3d 479 [1st Dept 2009]). A Judge of this Court granted defendant leave to appeal, and we now affirm.

Complainant, a 26-year-old man, encountered defendant outside a bodega in Washington Heights at about 4:30 am on July 14, 2007. Although complainant initially asked defendant to purchase marijuana for him, complainant testified that defendant and another man escorted him, at gunpoint, to a nearby building where they forced him to smoke crack-cocaine from a glass pipe. The men also allegedly forced him to give them the PIN numbers to his bank cards. Subject to threats that he or his family would be hurt if he did not cooperate, complainant was allegedly forced to withdraw money from his bank accounts on several occasions over the course of the morning. Complainant was allegedly taken back to the nearby building and was again forced to smoke crack between the additional trips to obtain cash.

Complainant was eventually able to escape his captors shortly after noon that day. When he returned home, he was shaking, crying and incoherent. Complainant was taken to the hospital, where he told medical staff that he "was forced to smoke [a] white substance from [a] pipe." Later that night, defendant was arrested after being pulled over for an unrelated traffic offense. He was in possession of a small amount of crack, as well as complainant's bank cards, identification cards and cell phone.

Defendant's version of events differed significantly from complainant's. Defendant essentially testified that complainant voluntarily smoked crack with him and that complainant withdrew the money from his bank accounts of his own volition. Defendant also explained that complainant had willingly handed over his personal property and left it in defendant's possession.

Defendant was convicted of two counts of criminal possession of stolen property in the fourth degree. The Appellate Division affirmed, finding that even if the court should have redacted the statements at issue from complainant's hospital records, any error was harmless (64 AD3d 422 [1st Dept 2009]). A Judge of this Court granted defendant leave to appeal, and we now affirm.

Business Records Exception

Under the business records exception to the hearsay rule, "[a]ny writing or record . . . 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 ...


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