Crawford in the Fourth

It has been over a year since the United States Supreme Court set the law of "hearsay" on its head with Justice Scalia's decision in Crawford v Washington (541 US 36 [2004]). For those unfamiliar with Crawford, go here for a minute and come up to speed. Pretty radical shift, eh? In the year since it was decided, Crawford has been cited over 2000 times in cases and articles around the country. I am researching a Crawford point for a brief I am working on, and was curious to see how Crawford has been received in the Fourth Department. To my surprise, Crawford has only been cited in three Fourth Department cases, and has not received extensive treatment in any of those opinions. In People v Lewis (11 AD3d 954), the Fourth held a co-defendant's statement was testimonial under Crawford, but ruled the statement nonetheless admissible because it was "not offered for the truth of the facts asserted therein." (Id.) In People v Bradley (15 AD3d 840), defendant's Crawford issue was found to be unpreserved. And in People v Sampel (16 AD3d 1023), Crawford was cited in a concurring opinion by Judge Hurlbutt to point out the flaw in the majority's reasoning. Perhaps it will just take some time for cases raising Crawford-type confrontation points to percolate up to the Fourth. Given the Fourth's focus on preservation issues, it is my suspicion that any cases with trial dates pre-dating Crawford will suffer from preservation problems, i.e. the Fourth will refuse to reach the Crawford issues based on trial counsel's failure to frame the issue in specific 6th amendment terms. But it will be interesting to see what the Fourth Department will do with a full-blown, well-preserved Crawford point when confronted with one.