"Affidavit of regularity/proof of mailing" testimonial under Crawford

The Fourth Department handed down two authored criminal opinions dealing with cases of first impression in an appellate court in New York. I will discuss Justice Pigott's opinion (holding a conviction by court martial can be the basis for a SORA classification) tomorrow. The other was Justice Hurlbutt's opinion in People v Pacer, and dealt with an application of the U.S. Supreme Court's recent watershed decision inCrawford v Washington to an affidavit of mailing. The defendant in Pacer was charged with aggravated unlicensed operation of a motor vehicle in the first degree ("AUO 1st"). A critical element of AUO 1st is "that defendant knew or had reason to know that his New York driving privilege had been revoked." (Pacer at 1-2.) An "affidavit of regularity/proof of mailing" was introduced by the People to prove this element, i.e. that defendant had been notified by mail that his license had been revoked. The Fourth Department held "that the affidavit at issue is testimonial and thus that its admission violated defendant's right to confrontation . . . the United States Supreme court in Crawford 'placed affidavits in the core class of testimonial statements.'" (Id. [quoting People v Capellan, 6 Misc 3d 809].)

It is nice to see the Fourth Department reaching a Crawford issue, but the interesting part of this opinion is what it does not address--whether the defendant preserved the issue in 6th Amendment terms before the lower court. Justice Hurlbutt notes that, because the Pacer case was in the pipeline on direct appeal when Crawford was decided, Crawford "must be applied retroactively to this case." (Pacer at 2.) That's fine as far as it goes. But even if an intermediate appellate court may apply Crawford does not mean it must if the 6th Amendment confrontation issue was not raised below. The Pacer opinion is conspicuously silent on that score, which is unusual for a Court ordinarily focused on preservation issues. It is possible the issue was clearly preserved and thus the preservation issue was not worth mentioning in the opinion; or it could be that the issue was not really preserved, but the Crawford issue was timely and interesting, and the Court wanted to write about it. I will try to obtain the briefs and find out, and will provide an update.