AD4: no right to confront "history and character" witnesses at persistent felony offender hearing

People v Redden, __ AD3 __ [4th Dept 2006] [available here]

In another decision touching on the application of Crawford v Washington, the Fourth Department holds in People v Redden that "hearsay evidence concerning defendant's uncharged criminal conduct was properly considered by the court in determining defendant's status as a persistent felony offender" because CPL 400.20[5] specifically allows "any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence" to be considered at a PFO hearing. (Redden, __ AD3d at __; CPL 400.20[5].) Moreover, the Court essentially held that the Sixth Amendment confrontation rights apply only at trial, and a defendant "has no Sixth Amendment right to confront witnesses with respect to his history and character" at a PFO hearing. (Id. at __.)

Note that it is still an open question as to whether a defendant's Confrontation rights apply at that portion of a persistent felony offender hearing where the prosecutor has to establish the fact of a defendant's prior convictions. In that case, section 400.15[7][a] of the CPL sets forth the "[m]anner of conducting [the] hearing," and requires the People to prove the fact of a defendant's prior convictions beyond a reasonable doubt "by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Since the Supreme Court's holding in Crawford v Washington is now a "rule applicable to a trial of the issue of guilt" in New York, it would seem that Crawford would apply to exclude testimonial hearsay unless the declarant is available for cross-examination or has previously been subject to cross.

And on a practical note: if you have a "loaded and operable .45 caliber semiautomatic weapon" in the backseat, it is probably not a good idea to drive your "substantially damaged vehicle in reverse and in the wrong direction on a one-way street". (Redden, __ AD3d at __.)

Speaking of Crawford, the United States Supreme Court heard arguments yesterday in two significant cases that should help clarify what statements are "testimonial" and thus fall within the holding of Crawford. Specifically, one case deals with the admission of 911 tapes, and the other with the admission of statements of the victim contained in a police report. The New York Times has an article on the arguments here. Professor Friedman at the Confrontation Blog argued on behalf of the defendant in the "police reports" case, and he has posted links to the Reply briefs filed in both cases (arguing that 911 calls and police reports containing victim statements are testimonial hearsay).