Start with CPLR Article 45 and New York common law. In New York, New York evidence practice is organized under the CPLR Article 45 and New York common law. Relevance starts at New York common-law relevance / CPLR Art. 45 practice; hearsay starts at New York common-law hearsay rule. That is the question this guide answers for evidence law. Authenticity is a separate fight under CPLR 4532; common law authentication. Depositions at trial: CPLR 3117 governs when deposition testimony may be used at trial in civil cases, including when the witness is unavailable or for impeachment and party-opponent purposes. Criminal practice follows CPL 240.30 and 670.10; deposition use at trial is narrow, but prior testimony may be offered under CPLR 4517 when statutory predicates are met.
General standards of admissibility
New York starts every evidence dispute with relevance and unfair prejudice. Under New York common-law relevance / CPLR Art. 45 practice, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
New York practitioners must master both CPLR codifications and common-law hearsay categories; FRE numbering is misleading in state court. Business records under CPLR 4518 require a witness with personal knowledge of record-keeping practices, not merely a certification.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in New York is governed by New York common-law character evidence. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
New York character-evidence opinions
The People of the State of New York v. Augustin Sandoval
The People of the State of New York v. Augustin Sandoval, 34 N.Y.2d 371 (1974)
…the part of the defendant may be admissible either to rebut character evidence introduced by the defendant or to establish material elements of the crime charged within the holdings of People v. Molineux (168 N. Y. 264) and its progeny. Such issues are distinct and involve considerations and factors with which we are not now concerned. *374We only observe, ás we indicated in Pe…
Practitioners open The People of the State of New York v. Augustin Sandoval when New York character evidence turns on the distinction in this sentence: "People v. Molineux (168 N. Y. 264) and its progeny. Such issues are distinct and involve considerations and factors with which we are not now concerned." Do not lift it out of the facts the court was deciding.
The People of the State of New York v. Charles Alvino, Appellant The People of the State of New Y — Hancock, J
…it is not permitted by any other rule governing the use of character evidence relied on by either the People or the majority (cf, CPL 60.40 [2] ["any previous conviction”]; Richardson, Evidence § 152 [Prince 10th ed] [reputation]). Accordingly, I would modify the order of the Appellate Division by reinstating only defendant’s conviction for criminal possession in the third deg…
New York opinions such as The People of the State of New York v. Charles Alvino, Appellant The People of the State of New Y — Hancock, J are cited where character evidence is disputed. The court stated: "People or the majority (cf, CPL 60.40 [2] ['any previous conviction”]; Richardson, Evidence § 152 [Prince 10th ed] [reputation])." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York, Respondent, v. Joseph Zackowitz, Appellant
The People of the State of New York, Respondent, v. Joseph Zackowitz, Appellant, 254 N.Y. 192 (1930)
…ate type of criminal,” a criminal affected with a murderous propensity. We are asked to extenuate the error by calling it an incident: what was proved may have an air of innocence if it is styled the Mstory of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an a…
The People of the State of New York, Respondent, v. Joseph Zackowitz, Appellant is worth reading on New York character evidence because the court put the point in its own words: "We are asked to extenuate the error by calling it an incident: what was proved may have an air of innocence if it is styled the Mstory of the crime. The virus of the ruling is not so easily extracted." Use that passage as the starting point, then read the facts that precede it.
The People of the State of New York v. Joseph Santarelli
The People of the State of New York v. Joseph Santarelli, 49 N.Y.2d 241 (1980)
…serts an insanity defense "opens the door” to the People’s "character evidence” only to the extent that such evidence has a natural tendency to disprove his specific claim. In the present case, for example, defendant’s claim was that he suffered from a form of "temporary insanity” that prevented him from apprehending the nature and consequences of his acts and from knowing that…
New York opinions such as The People of the State of New York v. Joseph Santarelli are cited where character evidence is disputed. The court stated: "People’s 'character evidence” only to the extent that such evidence has a natural tendency to disprove his specific claim." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York, Respondent, v. Jose Rodriguez, Appellant
The People of the State of New York, Respondent, v. Jose Rodriguez, Appellant, 100 N.Y.2d 30 (2003)
…point” and would approach the court before introducing any character evidence. In keeping with the understanding, the defense restricted the questioning of its witnesses to factual matters, being careful not to elicit any comment as to defendant’s character. In his summation, however, the prosecutor stated that “none of the defense witnesses testified that they were outraged a…
On character evidence, The People of the State of New York, Respondent, v. Jose Rodriguez, Appellant speaks to the New York dispute in this passage: "In keeping with the understanding, the defense restricted the questioning of its witnesses to factual matters, being careful not to elicit any comment as to defendant’s character." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York v. Gloria McNeeley
The People of the State of New York v. Gloria McNeeley, 77 A.D.2d 205 (1980)
…lso contends that she was prejudiced by the introduction of character evidence and testimony designed to show her propensity to commit a crime. Evidence that tends to negate the defense of accident or mistake is a recognized exception to the general rule that excludes evidence of collateral conduct (People v Dales, 309 NY 97, 101; People v Molineux, 168 NY 264, 293). This excep…
New York opinions such as The People of the State of New York v. Gloria McNeeley are cited where character evidence is disputed. The court stated: "Evidence that tends to negate the defense of accident or mistake is a recognized exception to the general rule that excludes evidence of collateral conduct (People v Dales, 309 NY 97, 101; People v Molineux, 168 NY 264, 293)." That is the language to brief; the rest of the decision supplies the procedural posture.
People v. Terry
People v. Terry, 196 A.D.3d 840 (2021)
…for the sole purpose of establishing a defendant's criminal propensity or bad character, such evidence may be admissible if it is probative of some other material issue or fact in the case and its probative value outweighs any undue prejudice" (People v Gannon, 174 AD3d 1054, 1058 [2019] [internal quotation marks and citations omitted], lv denied 34 NY3d 980 [2019]; see People…
Practitioners open People v. Terry when New York character evidence turns on the distinction in this sentence: "for the sole purpose of establishing a defendant's criminal propensity or bad character, such evidence may be admissible if it is probative of some other material issue or fact in the case and its probative value outweighs any undue prejudice' (People v Gannon, 174 AD3d 1054, 105" Do not lift it out of the facts the court was deciding.
Barbara Rigie v. Ernest S. Goldman
Barbara Rigie v. Ernest S. Goldman, 148 A.D.2d 23 (1989)
…it raised too many collateral issues; it was too similar to character evidence that is not admissible in civil actions; and negligence involves a departure from normal behavior so that prior conduct is of little probative value on the question of the behavior at issue (see, Richardson, Evidence § 186 [Prince 10th ed]; 1 Wigmore, Evidence § 92 [3d ed]; see generally, Prince, Evi…
On character evidence, Barbara Rigie v. Ernest S. Goldman speaks to the New York dispute in this passage: "it raised too many collateral issues; it was too similar to character evidence that is not admissible in civil actions; and negligence involves a departure from normal behavior so that prior conduct is of little probative value on the question of the behavior at issue (see, Richa" The surrounding opinion shows how the court applied that language to the record.
How the New York rule applies
Apply the New York authorities in order. The facts are simplified so the statute and the standard are visible.
A lawyer in New York wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under New York common-law relevance / CPLR Art. 45 practice.
- If the email is the opposing party's, test Common law party admission / adoptive admission before the hearsay definition in New York common-law hearsay rule.
- For the medical record, lay the business-records foundation in CPLR 4518 and the treatment purpose in Common law medical diagnosis/treatment.
- For the deathbed statement, meet Common law dying declaration, then authenticate every exhibit under CPLR 4532; common law authentication.
New York keeps hearsay, character, and authenticity on different rules inside the CPLR Article 45 and New York common law. Winning one does not win the others.
Hearsay: start with the definition
Most hearsay objections in New York are won or lost on the definition, not on an exception. Under New York common-law hearsay rule, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
New York hearsay opinions
The People of the State of New York, Respondent, v. John Casey, Appellant
The People of the State of New York, Respondent, v. John Casey, Appellant, 95 N.Y.2d 354 (2000)
…t on that date; and (3) the information did not contain non-hearsay allegations of defendant’s knowledge of the order. The Appellate Term held that the failure to annex the Temporary Order of Protection to the information “render [ed] it defective as an information because of its hearsay nature” (181 Misc 2d, at 745 [emphasis supplied]). Nevertheless, the court held that since…
The People of the State of New York, Respondent, v. John Casey, Appellant is worth reading on New York hearsay because the court put the point in its own words: "The Appellate Term held that the failure to annex the Temporary Order of Protection to the information “render [ed] it defective as an information because of its hearsay nature” (181 Misc 2d, at 745 [emphasis supplied])." Use that passage as the starting point, then read the facts that precede it.
Viviane Etienne Medical Care, P.C., as Assignee of Alem Cardenas, Respondent, v. Country-Wide Ins. Co., Appellant
…s applicable, meeting the business records exception to the hearsay rule. Applying this rule to the facts of this case, plaintiff demonstrated entitlement to summary judgment. Therefore, the order of the Appellate Division should be affirmed, insofar as appealed from, and the certified question answered in the affirmative. I. Following an automobile accident in June 2004, Alem…
New York opinions such as Viviane Etienne Medical Care, P.C., as Assignee of Alem Cardenas, Respondent, v. Country-Wide Ins. Co., Appellant are cited where hearsay is disputed. The court stated: "Applying this rule to the facts of this case, plaintiff demonstrated entitlement to summary judgment. Therefore, the order of the Appellate Division should be affirmed, insofar as appealed from, and the certified question answered in the affirmative. I." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York, Respondent, v. Willie Buie, Appellant
The People of the State of New York, Respondent, v. Willie Buie, Appellant, 86 N.Y.2d 501 (1995)
…ion of a 911 tape under New York’s present sense impression hearsay exception, where the declarant was available and testified at trial, improperly "bolstered” that victim-witness’s testimony. We hold first that the declarant’s availability at trial does not preclude the admissibility of the tape under that hearsay exception (see, People v Brown, 80 NY2d 729) and that its admis…
On hearsay, The People of the State of New York, Respondent, v. Willie Buie, Appellant speaks to the New York dispute in this passage: "New York’s present sense impression hearsay exception, where the declarant was available and testified at trial, improperly 'bolstered” that victim-witness’s testimony." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York v. Burnis Caviness
The People of the State of New York v. Burnis Caviness, 38 N.Y.2d 227 (1975)
…volunteered last sentence of the response, as inadmissible hearsay, was reversible error. Hearsay, the exclusion of which is perhaps the best known feature of Anglo-American law (Fisch, New York Evidence, § 756), has been subjected to a variety of definitions. Rule 63 of the Uniform Rules of Evidence, approved by the American Law Institute and American Bar Association, defines…
New York opinions such as The People of the State of New York v. Burnis Caviness are cited where hearsay is disputed. The court stated: "Hearsay, the exclusion of which is perhaps the best known feature of Anglo-American law (Fisch, New York Evidence, § 756), has been subjected to a variety of definitions." That is the language to brief; the rest of the decision supplies the procedural posture.
John Peter Eisenlord, Appellant, v. David H. Clum Et Al., Respondents
John Peter Eisenlord, Appellant, v. David H. Clum Et Al., Respondents, 126 N.Y. 552 (1891)
…competent at all. It seems to me that they are competent as hearsay evidence in a case of pedigree. Such a case is a well known and recognized exception to the general rule excluding hearsay evidence. This case involves without doubt a question of pedigree simply. It is what is termed in the books a purely genealogical controversy. Peter O. Eisenlord is upon the' plaintiff’s cl…
New York opinions such as John Peter Eisenlord, Appellant, v. David H. Clum Et Al., Respondents are cited where hearsay is disputed. The court stated: "It seems to me that they are competent as hearsay evidence in a case of pedigree. Such a case is a well known and recognized exception to the general rule excluding hearsay evidence. This case involves without doubt a question of pedigree simply." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York v. Alfonso Huertas, Also Known as Alphonso Huertas
…ed. Defendant contends that this testimony was inadmissible hearsay, as well as impermissible bolstering of the complainant’s in-court testimony through introduction *489of a prior consistent statement. For the reasons that follow, we conclude that the challenged testimony was properly admitted for a nonhearsay purpose. According to her testimony, the complainant encountered de…
Practitioners open The People of the State of New York v. Alfonso Huertas, Also Known as Alphonso Huertas when New York hearsay turns on the distinction in this sentence: "Defendant contends that this testimony was inadmissible hearsay, as well as impermissible bolstering of the complainant’s in-court testimony through introduction *489of a prior consistent statement." Do not lift it out of the facts the court was deciding.
The People of the State of New York, Respondent, v. Daniel A. Ludwig, Appellant
…rulings. The challenged testimony was admissible for the nonhearsay purpose of explaining to the jury how and when the sexual abuse came to light, resulting in an investigation and defendant's eventual arrest; and defendant's mother's proffered - 1 - - 2 - No. 166 testimony was inadmissible hearsay not subject to any exception. I. Complainant, who was born in 1998, resided with…
The People of the State of New York, Respondent, v. Daniel A. Ludwig, Appellant is worth reading on New York hearsay because the court put the point in its own words: "The challenged testimony was admissible for the nonhearsay purpose of explaining to the jury how and when the sexual abuse came to light, resulting in an investigation and defendant's eventual arrest; and defendant's mother's proffered - 1 - - 2 - No." Use that passage as the starting point, then read the facts that precede it.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. New York treats them under Common law party admission / adoptive admission. Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
New York party-admission opinions
The People of the State of New York, Respondent, v. Carlos Caban, Appellant
The People of the State of New York, Respondent, v. Carlos Caban, Appellant, 5 N.Y.3d 143 (2005)
…testimony of prosecution witness George Castro. By his own admission, Castro was a street-level drug dealer who, along with several others, worked for defendant, selling crack on Fox Street in the Bronx. Castro resided in defendant’s stash house, and was there on March 18, 1995, when the charged conspiracy was allegedly hatched. The object of the conspiracy was to kill Angel O…
The People of the State of New York, Respondent, v. Carlos Caban, Appellant is worth reading on New York party admissions because the court put the point in its own words: "George Castro. By his own admission, Castro was a street-level drug dealer who, along with several others, worked for defendant, selling crack on Fox Street in the Bronx." Use that passage as the starting point, then read the facts that precede it.
Yvette Huff v. Anita L. Rodriguez, Formerly Known as Anita L. Rosario
Yvette Huff v. Anita L. Rodriguez, Formerly Known as Anita L. Rosario, 45 A.D.3d 1430 (2007)
…thus does not fall within the hearsay exception for a party admission or a statement against interest (see Cover v Cohen, 61 NY2d 261, 274 [1984]). Thus, those portions of the report discussing the cause of the accident and the testimony of the officer in which he discussed his conclusions concerning the cause of the accident were improperly admitted at trial (see id.). We conc…
New York opinions such as Yvette Huff v. Anita L. Rodriguez, Formerly Known as Anita L. Rosario are cited where party admissions is disputed. The court stated: "Cover v Cohen, 61 NY2d 261, 274 [1984]). Thus, those portions of the report discussing the cause of the accident and the testimony of the officer in which he discussed his conclusions concerning the cause of the accident were improperly admitted at trial (see id.)." That is the language to brief; the rest of the decision supplies the procedural posture.
Joseph Gagliano v. Elsie Vaccaro
Joseph Gagliano v. Elsie Vaccaro, 97 A.D.2d 430 (1983)
…eption would render the statement admissible, e.g., a party admission. (See Murray v Donlan, supra.) Since the question of which party had the green light was critical to this case, we hold that the admission in evidence of the police accident report containing a conclusory statement on this issue constituted prejudicial error. Damiani, J. P., Gulotta, O’Connor and Rubin, JJ.,…
On party admissions, Joseph Gagliano v. Elsie Vaccaro speaks to the New York dispute in this passage: "See Murray v Donlan, supra.) Since the question of which party had the green light was critical to this case, we hold that the admission in evidence of the police accident report containing a conclusory statement on this issue constituted prejudicial error. Damiani, J. P." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York v. Diquawn Moore
The People of the State of New York v. Diquawn Moore, 89 A.D.3d 769 (2011)
…admitted under the exception to the hearsay rule for party admissions (see People v Johnson, 93 NY2d 254, 260 [1999]; People v Valdes, 66 AD3d 925, 926 [2009]; People v Nealy, 32 AD3d 400, 402 [2006]), and did not constitute improper bolstering (see People v Spicola, 16 NY3d 441, 452-453 [2011], cert denied 565 US —, 132 S Ct 400 [2011]; People v Buie, 86 NY2d 501, 510-511 [19…
The People of the State of New York v. Diquawn Moore is worth reading on New York party admissions because the court put the point in its own words: "admitted under the exception to the hearsay rule for party admissions (see People v Johnson, 93 NY2d 254, 260 [1999]; People v Valdes, 66 AD3d 925, 926 [2009]; People v Nealy, 32 AD3d 400, 402 [2006]), and did not constitute improper bolstering (see People v Spicola, 16 NY3d 441," Use that passage as the starting point, then read the facts that precede it.
Heriberto Mosqueda, Respondent, v. Ariston Development Group Et Al., Appellants
…uity Co., 72 AD3d 592 [1st Dept 2010]). Moreover, the party admission exception to the hearsay rule does not apply. Any statement in the medical records allegedly attributable to plaintiff “does not qualify as an admission unless the [individual] who recorded it were to testify that it was the [plaintiff]’s statement” (Mikel v Flatbush Gen. Hosp., 49 AD2d 581, 582 [2d Dept 1975…
Heriberto Mosqueda, Respondent, v. Ariston Development Group Et Al., Appellants is worth reading on New York party admissions because the court put the point in its own words: "Co., 72 AD3d 592 [1st Dept 2010]). Moreover, the party admission exception to the hearsay rule does not apply." Use that passage as the starting point, then read the facts that precede it.
Rosa v. 47 E. 34th St. (NY), L.P.
Rosa v. 47 E. 34th St. (NY), L.P., 2022 NY Slip Op 05144 (2022)
…onversations with Cuevas, whose statements constitute party admissions. When "a party raises a legal issue for the first time on appeal, as long as the issue is determinative and the record on appeal is sufficient to permit review, this Court may consider the new argument" (Watson v City of New York, 157 AD3d 510, 511 [1st Dept 2018]). We may also consider this testimony in our…
New York opinions such as Rosa v. 47 E. 34th St. (NY), L.P. are cited where party admissions is disputed. The court stated: "Cuevas, whose statements constitute party admissions." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York v. Sinecio Morel
The People of the State of New York v. Sinecio Morel, 8 Misc. 3d 67 (2005)
…viction. We reject defendant’s challenge to the statements’ admission on state law hearsay grounds. In People v Romero (78 NY2d 355 [1991], supra), the Court applied a two-part test for the admission of a declarant’s statements to an unavailable translator: (1) “If a party has made an interpreter an agent for the purpose of translating what he or she says, the interpreter’s tra…
On party admissions, The People of the State of New York v. Sinecio Morel speaks to the New York dispute in this passage: "We reject defendant’s challenge to the statements’ admission on state law hearsay grounds." The surrounding opinion shows how the court applied that language to the record.
Yassin v. Blackman
Yassin v. Blackman, 2020 NY Slip Op 05090 (2020)
…fy a line of cases from this Court that held that a party's admission, contained in an uncertified police report, was admissible. For the reasons that follow, those cases should no longer be followed. Further, the order of the Supreme Court granting the plaintiff's motion for summary judgment on the issue of liability should be reversed. I. The plaintiff commenced this action t…
Practitioners open Yassin v. Blackman when New York party admissions turns on the distinction in this sentence: "Court that held that a party's admission, contained in an uncertified police report, was admissible. For the reasons that follow, those cases should no longer be followed." Do not lift it out of the facts the court was deciding.
Business records
The business-records exception under CPLR 4518 is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
New York business-records opinions
The People of the State of New York, Respondent, v. Tyrone Mingo, Appellant; The People of the State of New York
…office documents may be reliable for reasons similar to the business records exception to the hearsay rule, that is “records systematically made for the conduct of a business . . . are inherently highly trustworthy because they are routine reflections of day-to-dáy operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct…
Practitioners open The People of the State of New York, Respondent, v. Tyrone Mingo, Appellant; The People of the State of New York when New York business records turns on the distinction in this sentence: "office documents may be reliable for reasons similar to the business records exception to the hearsay rule, that is “records systematically made for the conduct of a business . . . are inherently highly trustworthy because they are routine reflections of day-to-dáy operations and" Do not lift it out of the facts the court was deciding.
Viviane Etienne Medical Care, P.C., as Assignee of Alem Cardenas, Respondent, v. Country-Wide Ins. Co., Appellant
…ssible form, including, where it is applicable, meeting the business records exception to the hearsay rule. Applying this rule to the facts of this case, plaintiff demonstrated entitlement to summary judgment. Therefore, the order of the Appellate Division should be affirmed, insofar as appealed from, and the certified question answered in the affirmative. L Following an automo…
Viviane Etienne Medical Care, P.C., as Assignee of Alem Cardenas, Respondent, v. Country-Wide Ins. Co., Appellant is worth reading on New York business records because the court put the point in its own words: "Applying this rule to the facts of this case, plaintiff demonstrated entitlement to summary judgment. Therefore, the order of the Appellate Division should be affirmed, insofar as appealed from, and the certified question answered in the affirmative." Use that passage as the starting point, then read the facts that precede it.
The People of the State of New York v. Michael Kennedy
The People of the State of New York v. Michael Kennedy, 68 N.Y.2d 569 (1986)
…RT Kaye, J. This appeal presents a novel application of the business records exception to the hearsay rule (CPLR 4518): two miniature pocket diaries, identified by the People’s retained expert as the master records of a loanshark kept in the regular course of his business, were received in evidence in a prosecution against defendant to establish that he was the loans-hark’s sil…
On business records, The People of the State of New York v. Michael Kennedy speaks to the New York dispute in this passage: "RT Kaye, J. This appeal presents a novel application of the business records exception to the hearsay rule (CPLR 4518): two miniature pocket diaries, identified by the People’s retained expert as the master records of a loanshark kept in the regular course of his business, were r" The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York, Respondent, v. Michael Rawlins, Appellant; The People of the State of New York
…es. All four reports by Beatty and Laschke were admitted as business records. Connolly testified that in each case, he independently compared the latent prints with defendant's fingerprint card and determined a match with "one hundred percent certainty," and thus agreed with Beatty's and Laschke's prior conclusions. Because Laschke testified at trial, however, defendant limited…
New York opinions such as The People of the State of New York, Respondent, v. Michael Rawlins, Appellant; The People of the State of New York are cited where business records is disputed. The court stated: "All four reports by Beatty and Laschke were admitted as business records." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York, Respondent, v. Oldalys Ortega, Appellant; The People of the State of New York
…d 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. *614 People v Benston 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…
On business records, The People of the State of New York, Respondent, v. Oldalys Ortega, Appellant; The People of the State of New York speaks to the New York dispute in this passage: "We find no reversible error in either case and uphold the convictions. *614 People v Benston Defendant, who was without another place to live, had been residing in the spare bedroom in complainant's apartment, at her invitation." The surrounding opinion shows how the court applied that language to the record.
US Bank National Association, as Trustee, Respondent, v. Miguel Madero Et Al., Appellants, Et Al., Defendants
…per foundation for the admission of these records under the business records exception to the hearsay rule (see CPLR 4518 [a]), those of Campbell’s assertions that were based on these records were inadmissible. Since the motion was predicated on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law…
Practitioners open US Bank National Association, as Trustee, Respondent, v. Miguel Madero Et Al., Appellants, Et Al., Defendants when New York business records turns on the distinction in this sentence: "CPLR 4518 [a]), those of Campbell’s assertions that were based on these records were inadmissible." Do not lift it out of the facts the court was deciding.
In the Matter of Department of Social Services, on Behalf of R. Children, Children Alleged to be Abused v. Waleska M.
…ct article 10, and the record was thus introduced under the business records exception to the hearsay rule as codified in CPLR 4518 (a). Moreover, in Leon RR the case record was replete with inadmissible hearsay from persons who had no business duty to report to the agency, unlike the foster mothers in the present case. We have considered the appellants’ remaining contentions,…
In the Matter of Department of Social Services, on Behalf of R. Children, Children Alleged to be Abused v. Waleska M. is worth reading on New York business records because the court put the point in its own words: "CPLR 4518 (a). Moreover, in Leon RR the case record was replete with inadmissible hearsay from persons who had no business duty to report to the agency, unlike the foster mothers in the present case." Use that passage as the starting point, then read the facts that precede it.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in New York trial practice.
Excited utterance — Common law excited utterance (People v. Johnson, 38 N.Y.2d 271 (1975)). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Common law present sense impression. A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Common law state-of-mind exception. Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under CPLR 4517 (former testimony); common law unavailability, New York opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under CPLR 4517 is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Common law dying declaration remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
New York dying-declaration opinions
The People of the State of New York, Respondent, v. Leo J. Mleczko, Appellant
The People of the State of New York, Respondent, v. Leo J. Mleczko, Appellant, 298 N.Y. 153 (1948)
…is point that, shortly before her death, Mrs. Warner made a dying declaration naming defendant as her assailant, confirming an earlier identification, and that defendant orally and in writing acknowledged his guilt. Objection to the admissibility of the confessions and to the receipt in evidence of the dying declaration need not detain us. Whether or no the confessions were fre…
On dying declaration, The People of the State of New York, Respondent, v. Leo J. Mleczko, Appellant speaks to the New York dispute in this passage: "Mrs. Warner made a dying declaration naming defendant as her assailant, confirming an earlier identification, and that defendant orally and in writing acknowledged his guilt." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York, Respondent v. Lee H. Allen, Appellant
The People of the State of New York, Respondent v. Lee H. Allen, Appellant, 300 N.Y. 222 (1949)
…welve hours before her death, and received in evidence as a dying declaration. 4. Defendant’s statement to the police on the day after the wounding of his wife, in which he said that there had been a drinking bout that night, then a quarrel, that his wife had picked up the knife, whereupon he had tried to take it from her and that in the ensuing struggle she had somehow been st…
New York opinions such as The People of the State of New York, Respondent v. Lee H. Allen, Appellant are cited where dying declaration is disputed. The court stated: "welve hours before her death, and received in evidence as a dying declaration. 4. Defendant’s statement to the police on the day after the wounding of his wife, in which he said that there had been a drinking bout that night, then a quarrel, that his wife had picked up the knife," That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York, Respondent, v. Max Ludkowitz, Appellant
The People of the State of New York, Respondent, v. Max Ludkowitz, Appellant, 266 N.Y. 233 (1935)
…t appellant was the man who did the shooting was an alleged dying declaration *237 offered on the part of the People, and the testimony of the detective who took down the declaration and of a surgeon who was present when it was taken. The declaration reads as follows: “ Ante Mortem Statement. “ Place — St. Catherine’^ Hosp.- — • Time 10:10 p. m. Date — July 5th, 1934. “ Q. What…
On dying declaration, The People of the State of New York, Respondent, v. Max Ludkowitz, Appellant speaks to the New York dispute in this passage: "People, and the testimony of the detective who took down the declaration and of a surgeon who was present when it was taken. The declaration reads as follows: “ Ante Mortem Statement. “ Place — St. Catherine’^ Hosp.- — • Time 10:10 p. m. Date — July 5th, 1934. “ Q." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York v. Thomas Clay
The People of the State of New York v. Thomas Clay, 88 A.D.3d 14 (2011)
…victim’s words *16were testimonial, but they constituted a “dying declaration” and, thus, were admissible as an exception to the Confrontation Clause. At approximately 9:00 p.m. on August 11, 2006, Igol Isaacs was shot on a street in Brooklyn. Police Captain Brian McGee responded to a radio call seeking assistance at the scene of the shooting. When McGee arrived at that locatio…
New York opinions such as The People of the State of New York v. Thomas Clay are cited where dying declaration is disputed. The court stated: "Confrontation Clause. At approximately 9:00 p.m. on August 11, 2006, Igol Isaacs was shot on a street in Brooklyn. Police Captain Brian McGee responded to a radio call seeking assistance at the scene of the shooting." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York v. . Peter Smith — Andrews, J., dissenting
The People of the State of New York v. . Peter Smith — Andrews, J., dissenting, 104 N.Y. 491 (1887)
…mpending death, within the rules governing the admission of dying declarations; and, second, whether the court committed a'legal error in permitting declarations of the deceased to be proved in the first instance, not relating to the immediate circumstances of the death, and which the court subsequently ordered to be stricken out. In respect to the first question, viz., whether…
Practitioners open The People of the State of New York v. . Peter Smith — Andrews, J., dissenting when New York dying declaration turns on the distinction in this sentence: "mpending death, within the rules governing the admission of dying declarations; and, second, whether the court committed a'legal error in permitting declarations of the deceased to be proved in the first instance, not relating to the immediate circumstances of the death, and whic" Do not lift it out of the facts the court was deciding.
The People of the State of New York v. Carlos I. Medina
The People of the State of New York v. Carlos I. Medina, 53 A.D.3d 1046 (2008)
…t the jury concerning excited utterances because, “[u]nlike dying declarations, excited utterances do not require special instructions to the jury” (People v Corbin, 284 AD2d 408 [2001], lv denied 96 NY2d 917 [2001]). In addition, because the victim’s responses were properly admitted in evidence as excited utterances, it is of no moment that the court treated the responses as d…
New York opinions such as The People of the State of New York v. Carlos I. Medina are cited where dying declaration is disputed. The court stated: "People v Corbin, 284 AD2d 408 [2001], lv denied 96 NY2d 917 [2001])." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York v. David Rodriguez
The People of the State of New York v. David Rodriguez, 177 A.D.2d 664 (1991)
…th, 111 AD2d 883). Further, the admission of the decedent’s dying declaration was proper. The dying declaration was properly linked to the defendant. Any deficiencies in the value of the dying declaration went to the weight rather than the admissibility of the statement (see, Richardson, Evidence § 307 [Prince 10th ed]; People v Liccione, 63 AD2d 305, affd 50 NY2d 850). Further…
The People of the State of New York v. David Rodriguez is worth reading on New York dying declaration because the court put the point in its own words: "AD2d 883). Further, the admission of the decedent’s dying declaration was proper. The dying declaration was properly linked to the defendant." Use that passage as the starting point, then read the facts that precede it.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Common law medical diagnosis/treatment cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
New York medical-statement opinions
The People of the State of New York, Respondent, v. Oldalys Ortega, Appellant; The People of the St — Smith, J
…ther hearsay exception, for statements made for purposes of medical diagnosis or treatment. That exception is explicitly recognized in the Federal Rules of Evidence (rule 803 [4]), and finds some support in New York case law (see People v Thomas, 282 AD2d 827, 828 [3d Dept 2001]; Scott v Mason, 155 AD2d 655, 657 [2d Dept 1989]). The leading treatises on New York evidence, howev…
New York opinions such as The People of the State of New York, Respondent, v. Oldalys Ortega, Appellant; The People of the St — Smith, J are cited where medical diagnosis hearsay is disputed. The court stated: "That exception is explicitly recognized in the Federal Rules of Evidence (rule 803 [4]), and finds some support in New York case law (see People v Thomas, 282 AD2d 827, 828 [3d Dept 2001]; Scott v Mason, 155 AD2d 655, 657 [2d Dept 1989])." That is the language to brief; the rest of the decision supplies the procedural posture.
The People of the State of New York v. Andrew James
The People of the State of New York v. Andrew James, 19 A.D.3d 616 (2005)
…o treated the decedent, were germane to the decedent’s then medical diagnosis and treatment (see CPLR 4518; People v Caccese, 211 AD2d 976, 977-978 [1995]). The trial court also properly permitted, under the excited utterance exception to the hearsay rule, a police officer to testify at trial concerning a statement that the decedent had given him in November 2000 that the defen…
On medical diagnosis hearsay, The People of the State of New York v. Andrew James speaks to the New York dispute in this passage: "CPLR 4518; People v Caccese, 211 AD2d 976, 977-978 [1995])." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York v. Michael Duhs
The People of the State of New York v. Michael Duhs, 16 N.Y.3d 405 (2011)
…child’s *408statement in evidence as germane to the child’s medical diagnosis and treatment, and whether its admission violated defendant’s constitutional right to confront the witnesses against him. Supreme Court properly concluded that the child’s statement was germane to his medical diagnosis and treatment and therefore was properly admitted under that exception to the hears…
The People of the State of New York v. Michael Duhs is worth reading on New York medical diagnosis hearsay because the court put the point in its own words: "child’s *408statement in evidence as germane to the child’s medical diagnosis and treatment, and whether its admission violated defendant’s constitutional right to confront the witnesses against him. Supreme Court properly concluded that the child’s statement was germane to his m" Use that passage as the starting point, then read the facts that precede it.
In the Matter of Anthony P. Depczynski, Respondent, v. Adsco/Farrar & Trefts Et Al., Appellants. Workers’
…ness of injury and causation, even in the absence of formal medical diagnosis. Claimant was hired in 1948 as a laborer in the shop area of Farrar & Trefts (now Adsco Manufacturing Corp.), a boilermaker and metal fabricator. For 34 years he was regularly *596 exposed to what he described as "[vjery, very heavy noises” caused by riveting, hammering and other heavy metalwork. Clai…
New York opinions such as In the Matter of Anthony P. Depczynski, Respondent, v. Adsco/Farrar & Trefts Et Al., Appellants. Workers’ are cited where medical diagnosis hearsay is disputed. The court stated: "Claimant was hired in 1948 as a laborer in the shop area of Farrar & Trefts (now Adsco Manufacturing Corp.), a boilermaker and metal fabricator." That is the language to brief; the rest of the decision supplies the procedural posture.
Diana Service, Appellant, v. Nathan S. McCoy Et Al., Respondents
Diana Service, Appellant, v. Nathan S. McCoy Et Al., Respondents, 131 A.D.3d 1038 (2015)
…occurred in this matter were not useful for purposes of her medical diagnosis or treatment and, accordingly, a medical chart entry containing such hearsay statements could not be considered to have been prepared in the regular course of the hospital’s business (cf. Robles v Polytemp, Inc., 127 AD3d 1052, 1054 [2015]). Accordingly, the statements contained in the chart entry are…
Diana Service, Appellant, v. Nathan S. McCoy Et Al., Respondents is worth reading on New York medical diagnosis hearsay because the court put the point in its own words: "Robles v Polytemp, Inc., 127 AD3d 1052, 1054 [2015])." Use that passage as the starting point, then read the facts that precede it.
The People of the State of New York v. Rupnarine Jaikaran
The People of the State of New York v. Rupnarine Jaikaran, 95 A.D.3d 903 (2012)
…ements at issue in the hospital records were germane to the medical diagnosis and treatment of the complainant (see People v Ortega, 15 NY3d at 617; cf. People v James, 19 AD3d 616, 617 [2005]), and “were critical to the complainant’s credibility regarding the alleged sexual abuse and cannot be deemed collateral” (People v Gibbs, 215 AD2d 689, 689 [1995]). We find that the erro…
New York opinions such as The People of the State of New York v. Rupnarine Jaikaran are cited where medical diagnosis hearsay is disputed. The court stated: "People v Ortega, 15 NY3d at 617; cf. People v James, 19 AD3d 616, 617 [2005]), and “were critical to the complainant’s credibility regarding the alleged sexual abuse and cannot be deemed collateral” (People v Gibbs, 215 AD2d 689, 689 [1995])." That is the language to brief; the rest of the decision supplies the procedural posture.
Use of depositions at trial
CPLR 3117 governs when deposition testimony may be used at trial in civil cases, including when the witness is unavailable or for impeachment and party-opponent purposes. Criminal practice follows CPL 240.30 and 670.10; deposition use at trial is narrow, but prior testimony may be offered under CPLR 4517 when statutory predicates are met.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
New York deposition / former-testimony opinions
The Trustees of the First Baptist Church in Brooklyn v. . the Brooklyn Fire Insurance Company. [Fn(a)]
[The Trustees of the First Baptist Church in Brooklyn v. . the Brooklyn Fire Insurance Company. [Fn(a)], 28 N.Y. 153 (1863)](/casedisplay?opinion=132186300000075)
…ts' counsel was also allowed to read a part of Mr. Stevens' deposition, in which he stated that the president had never reported to him the existence of such an arrangement as the plaintiffs attempted to prove, and that he had never heard of any renewal or agreement to renew the policy after July, 1848. The exception based upon this ruling does not specify any grounds. It falls…
Practitioners open The Trustees of the First Baptist Church in Brooklyn v. . the Brooklyn Fire Insurance Company. [Fn(a)] when New York deposition / former testimony turns on the distinction in this sentence: "Mr. Stevens' deposition, in which he stated that the president had never reported to him the existence of such an arrangement as the plaintiffs attempted to prove, and that he had never heard of any renewal or agreement to renew the policy after July, 1848." Do not lift it out of the facts the court was deciding.
Nathan Krauskopf v. Clarence E. Tallman
Nathan Krauskopf v. Clarence E. Tallman, 38 A.D. 273 (1899)
…rosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the party-making them. (Code Crim. Proc. § 148.) As there is no allegation or proof to the contrary, it must be assumed, that this information was taken by the police magistrate in the ordinary manner in which such things are done. The statute requires, further…
On deposition / former testimony, Nathan Krauskopf v. Clarence E. Tallman speaks to the New York dispute in this passage: "Code Crim. Proc. § 148.) As there is no allegation or proof to the contrary, it must be assumed, that this information was taken by the police magistrate in the ordinary manner in which such things are done." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York, Respondent, v. Peter DiTommaso, Appellant
The People of the State of New York, Respondent, v. Peter DiTommaso, Appellant, 127 A.D.3d 11 (2015)
…in either the grand jury testimony or any other proceeding, deposition or interview that he was confused or that his memory was muddled in any way." Furthermore, Woods testified at the hearing that he believed that his grand jury testimony was truthful and accurate and the testimony itself was corroborated by other evidence. Thus, finding that Woods "was being less than candid…
The People of the State of New York, Respondent, v. Peter DiTommaso, Appellant is worth reading on New York deposition / former testimony because the court put the point in its own words: "Furthermore, Woods testified at the hearing that he believed that his grand jury testimony was truthful and accurate and the testimony itself was corroborated by other evidence." Use that passage as the starting point, then read the facts that precede it.
In the Matter of Charles C. Branch, an Attorney
In the Matter of Charles C. Branch, an Attorney, 178 A.D. 585 (1917)
…appeared before the grievance committee and reiterated his former testimony, stating that it was true and *587testified as follows: “ Q. Then all this story that he has told about the payment to him of $20 and the further payment of $50 is incorrect? A. Yes. Q. And you did not take any receipt from him? A. No, sir. Q. And you did not tell him that you would like to have him wr…
Practitioners open In the Matter of Charles C. Branch, an Attorney when New York deposition / former testimony turns on the distinction in this sentence: "Q. Then all this story that he has told about the payment to him of $20 and the further payment of $50 is incorrect?" Do not lift it out of the facts the court was deciding.
Claire L. Perkins v. John H. Perkins, Jr. — Goldstein, J., concurring in part and dissenting in part
…igated to seek employment. The trial court found that prior deposition testimony established that the former husband "had no interest in the farm or in the antiques, that the same were [the former wife’s] sole and separate property”, and that it could not "accept, as a matter of credibility, the former husband now, in essence, recanting his previously given testimony under oath…
Claire L. Perkins v. John H. Perkins, Jr. — Goldstein, J., concurring in part and dissenting in part is worth reading on New York deposition / former testimony because the court put the point in its own words: "igated to seek employment. The trial court found that prior deposition testimony established that the former husband 'had no interest in the farm or in the antiques, that the same were [the former wife’s] sole and separate property”, and that it could not 'accept, as a matter of" Use that passage as the starting point, then read the facts that precede it.
Sydney Siegel v. Evelyn Waldbaum, as Administrators of the Estate of Samuel L. Waldbaum
…rsation. When defendants’ objection to the admission of the deposition taken at the examination before trial was also sustained, plaintiff conceded that without it he could not make out a prima facie case. Defendants’ motion for dismissal was then granted. In our opinion, although plaintiff was properly found to be incompetent to testify as to the conversation (see CPLR 4519),…
Practitioners open Sydney Siegel v. Evelyn Waldbaum, as Administrators of the Estate of Samuel L. Waldbaum when New York deposition / former testimony turns on the distinction in this sentence: "When defendants’ objection to the admission of the deposition taken at the examination before trial was also sustained, plaintiff conceded that without it he could not make out a prima facie case. Defendants’ motion for dismissal was then granted." Do not lift it out of the facts the court was deciding.
In the Matter of the Probate of the Will of Lillian H. White, Walter Haydock, Appellant John Hayd — Voorhis, J
…nts.” In Rintelen v. Schaefer (158 App. Div. 477, 483), the depositions of physicians who had examined testatrix in an incompetency proceeding were excluded in a will contest. The circumstance that in some of these decisions the courts were concerned with the commitment of an insane person rather than the appointment of a committee does not render irrelevant either their underl…
Practitioners open In the Matter of the Probate of the Will of Lillian H. White, Walter Haydock, Appellant John Hayd — Voorhis, J when New York deposition / former testimony turns on the distinction in this sentence: "In Rintelen v. Schaefer (158 App. Div. 477, 483), the depositions of physicians who had examined testatrix in an incompetency proceeding were excluded in a will contest." Do not lift it out of the facts the court was deciding.
Marra v. Zaichenko
Marra v. Zaichenko, 2023 NY Slip Op 01335 (2023)
…Here, defendant proffered, among other things, plaintiff's deposition testimony wherein he testified that it was snowing at the time of the incident. Defendant also submitted an affidavit of Alicia Wasula, a meteorologist, who averred that, in her opinion, since the time it started snowing that day, approximately one inch of new snow had fallen. Ultimately, she opined that any…
On deposition / former testimony, Marra v. Zaichenko speaks to the New York dispute in this passage: "Here, defendant proffered, among other things, plaintiff's deposition testimony wherein he testified that it was snowing at the time of the incident." The surrounding opinion shows how the court applied that language to the record.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under CPLR 4532; common law authentication, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
New York trials require a foundation that a document or recording is genuine before CPLR 4518 business-record analysis applies. CPLR 4532 addresses authentication of official records; common-law authentication governs most other exhibits including emails and surveillance video.
Why authenticity gets its own section in every New York trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for New York trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
New York authenticity opinions
Joel Thome v. The Alexander & Louisa Calder Foundation, Also Known as The Calder Foundation
…ve response, or any response, to his submission seeking its authentication of two theatrical stage sets and related material in his possession (the Work) that he claims were the work of renowned artist Alexander Calder. It raises the question of whether a private foundation such as this has any legal obligation either to the public at large or to owners of art work to authentic…
On authentication, Joel Thome v. The Alexander & Louisa Calder Foundation, Also Known as The Calder Foundation speaks to the New York dispute in this passage: "Work) that he claims were the work of renowned artist Alexander Calder." The surrounding opinion shows how the court applied that language to the record.
The People of the State of New York, Respondent, v. Chris Price, Appellant
The People of the State of New York, Respondent, v. Chris Price, Appellant, 29 N.Y.3d 472 (2017)
…er the People proffered a sufficient foundation at trial to authenticate *474a photograph — purportedly of defendant holding a firearm and money — that was obtained from an Internet profile page allegedly belonging to defendant. We conclude that the People’s proof fell short of establishing the requisite authentication to render the photograph admissible in evidence. I. Defenda…
Practitioners open The People of the State of New York, Respondent, v. Chris Price, Appellant when New York authentication turns on the distinction in this sentence: "People proffered a sufficient foundation at trial to authenticate *474a photograph — purportedly of defendant holding a firearm and money — that was obtained from an Internet profile page allegedly belonging to defendant." Do not lift it out of the facts the court was deciding.
The People of the State of New York v. Barry C. Garneau
The People of the State of New York v. Barry C. Garneau, 120 A.D.2d 112 (1986)
…lity of documents under CPLR 4520 is as much dependent upon authentication as is admissibility under the common-law public documents exception to the hearsay rule. We turn, then, to a consideration of whether the documents were admissible, as the trial court found, under the common-law exception, which is founded upon a public official’s lack of motive to distort the truth when…
The People of the State of New York v. Barry C. Garneau is worth reading on New York authentication because the court put the point in its own words: "CPLR 4520 is as much dependent upon authentication as is admissibility under the common-law public documents exception to the hearsay rule." Use that passage as the starting point, then read the facts that precede it.
The People of the State of New York v. Clifton Brown
The People of the State of New York v. Clifton Brown, 216 A.D.2d 737 (1995)
…ne of the guns at issue at trial. County Court, without any authentication testimony, admitted the exhibit into evidence.* Defendant claims this to have been reversible error. We agree. It has long been established that in order to admit a photograph into evidence, authentication is required (see, People v Byrnes, 33 NY2d 343, 349). Photographs are authenticated by testimony of…
The People of the State of New York v. Clifton Brown is worth reading on New York authentication because the court put the point in its own words: "County Court, without any authentication testimony, admitted the exhibit into evidence.* Defendant claims this to have been reversible error. We agree." Use that passage as the starting point, then read the facts that precede it.
Matter of M.S. (M.H.)
Matter of M.S. (M.H.), 2026 NY Slip Op 00825 (2026)
…n admitting the videos,[FN1] because they were not properly authenticated; (2) the finding of abuse against her was improper because, in her view, actual knowledge is required to sustain a finding of abuse under Family Court Act § 1012 (e) (iii) (A); (3) Family Court's finding of derivative abuse as to G.H. was improper because there was no evidence that any sexual abuse was ev…
On authentication, Matter of M.S. (M.H.) speaks to the New York dispute in this passage: "FN1] because they were not properly authenticated; (2) the finding of abuse against her was improper because, in her view, actual knowledge is required to sustain a finding of abuse under Family Court Act § 1012 (e) (iii) (A); (3) Family Court's finding of derivative abuse as to G." The surrounding opinion shows how the court applied that language to the record.
Doyle v. P.A. Sports Authenticator
Doyle v. P.A. Sports Authenticator, 76 Misc. 3d 38 (2022)
Doyle v P.A. Sports Authenticator (2022 NY Slip Op 22301) Doyle v P.A. Sports Authenticator 2022 NY Slip Op 22301 [76 Misc 3d 38] Accepted for Miscellaneous Reports Publication Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts Published by New York State Law Reporting Bureau pursuant to Judiciary Law §…
Doyle v. P.A. Sports Authenticator is worth reading on New York authentication because the court put the point in its own words: "Doyle v P.A. Sports Authenticator (2022 NY Slip Op 22301) Doyle v P.A." Use that passage as the starting point, then read the facts that precede it.
Dorset v. 285 Madison Owner LLC
Dorset v. 285 Madison Owner LLC, 2023 NY Slip Op 01134 (2023)
…nguin Air Conditioning Corp.'s (Penguin) project manager to authenticate the Penguin-Penava purchase order and the ST-Penguin subcontract, which were marked as exhibits at his deposition. However, those documents, as submitted in support of defendants' motion and reproduced in the record, bear no exhibit sticker or other indication confirming that they are the same documents re…
Practitioners open Dorset v. 285 Madison Owner LLC when New York authentication turns on the distinction in this sentence: "Air Conditioning Corp.'s (Penguin) project manager to authenticate the Penguin-Penava purchase order and the ST-Penguin subcontract, which were marked as exhibits at his deposition." Do not lift it out of the facts the court was deciding.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under CPLR 4532; common law authentication (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent New York appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Frequently asked questions
What is the primary evidence source in New York?
New York applies the CPLR Article 45 and New York common law. New York never adopted the FRE; relevancy, character, and most hearsay remain common law, while CPLR Article 45 codifies selected exceptions and procedures.
How do New York courts decide relevance and unfair prejudice?
Under New York common-law relevance / CPLR Art. 45 practice, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in New York?
Party-opponent statements under Common law party admission / adoptive admission are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under CPLR 4518, show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in New York?
CPLR 3117 governs when deposition testimony may be used at trial in civil cases, including when the witness is unavailable or for impeachment and party-opponent purposes. Criminal practice follows CPL 240.30 and 670.10; deposition use at trial is narrow, but prior testimony may be offered under CPLR 4517 when statutory predicates are met.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. New York authenticity practice starts with CPLR 4532; common law authentication.
Where do dying declarations and medical statements fit?
Dying declarations under Common law dying declaration require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Common law medical diagnosis/treatment require a genuine diagnostic or treatment purpose and reasonable pertinence to care.