Wednesday, February 15, 2006

CA: document kept in attorney's office can still be a "business record" under the Penal Law

People v Bloomfield, __ NY3d __ [available here]

The Court of Appeals handed down three criminal opinions yesterday. None are ground-breakers, but the most significant is People v Bloomfield, where the Court of Appeals considered whether there was enough evidence at trial "that fraudulent letters kept in the files of an enterprise's legal counsel, rather than at the company's headquarters, were 'business records' as defined by Penal Law section 175.00." (Bloomfield, __ NY 3d at __.) The trial court found the letters to be business records; a unanimous Appellate Division reversed, holding that because the letters were not found in the files or records of any of the enterprises involved but rather in the attorney's office, "they were not 'kept or maintained' by these" enterprises and thus not "business records". (People v Bloomfield, 15 AD3d 302, 304.) The Court of Appeals disagreed, and started its analysis by noting the Penal Law definition of a "business record", i.e. "any writing or article . . . maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity." (Bloomfield, __ NY3d at __.) Given that definition, Court of Appeals found, "contrary to the Appellate Division's holding, the actual location of the records is not dispositive as to whether the documents are business records under Penal Law section 175. Instead, location is merely a factor for the trier of fact to consider in determining whether the purpose of the records is to reflect or evidence the 'condition or activity' of the enterprise." (Id. at __.)

The definition of "business records" discussed in Bloomfield--i.e. defining the term for purposes of attaching criminal liability for such crimes as falsifying business records under the Penal Law--should not be confused with the definition of a "business record" for evidentiary purposes under CPLR 4518.