Decided January 12, 2010

People v Ramos, 60 AD3d 1091, reversed.

APPEARANCES OF COUNSEL

Legal Aid Society, New York City (Jonathan Garelick and Steven Banks of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Daniel Bresnahan of counsel), for respondent.

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered on the charges of scheme to defraud in the first degree and petit larceny, and the present indictment otherwise dismissed without prejudice to an application by the People, if they be so advised, for leave to resubmit the charge of grand larceny in the fourth degree to another grand jury (see [*2]People v Steadman, 82 NY2d 1 [1993]; People v Mayo, 48 NY2d 245, 253 [1979]).

The trial court erred when it admitted hearsay evidence without a proper foundation (CPLR 4518 [a]). Even assuming some documents may be admitted as business records without{**13 NY3d at 915} foundation testimony (see People v Kennedy, 68 NY2d 569, 577 n 4 [1986]), the record at issue in this case was not such a document. Nothing on its face indicates that it "was made in the regular course of any business and that it was the regular course of such business to make it" (CPLR 4518 [a]). Nor can the error be deemed harmless in the circumstances of this case.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.