Tuesday, March 28, 2006

CA: "Affidavit of Regularity/Proof of Mailing" testimonial hearsay

People v Pacer, __ NY3d __ [available here]

The Court of Appeals handed down a decision today (written by Judge Rosenblatt) affirming the Fourth Department's application of Crawford v Washington to exclude as testimonial hearsay a simple DMV "affidavit of regularity/proof of mailing". I posted on the Fourth Department's decision in Pacer here. Given that the affidavit was "admittedly prepared at the People's request for use at trial", and that the affidavit was the only proof that defendant had been provided notice of his license suspension, Judge Rosenblatt found the affidavit inadmissible under Crawford; from the decision:

Faced with evidence of this type, defendants have no means of challenging the People's proof on a critical element. Without an opportunity to cross-examine the affiant, defendant had no chance to inquire about the basis for the affiant's 'information and belief' that the Department mailed the notice. Defendant had no chance to inquire whether the Department sometimes makes mistakes in mailing revocation notices; whether there were other drivers in the Department's database with the same name as defendant to whom the Department might have mailed the notice; to what address the affiant believed, based on her information, the Department had mailed the notice; whether the notice might have been returned undelivered; or whether the affiant could testify reliably about procedures as they existed 16 years in the past. In short, the lack of a live witness to confront eliminated defendant's opportunity to contest a decisive piece of evidence against him. This is exactly the evil the Confrontation Clause was designed to prevent.

(Id. at __.)

One other interesting note: Judge Rosenblatt notes in a footnote that "Defendant here has neither preserved nor argued any claim based on our State Constitution." (Id. at __.) Whether this is a subtle hint to criminal defense lawyers to start raising Crawford-like arguments based on the state constitution's confrontation clause is anyone's guess, although the only reason the issue would be reached under the state constitution is if the Court of Appeals was willing to provide more protections under the state confrontation clause than SCOTUS has done with Crawford under the federal constitution. Reaching the issue under the state constitution would allow the Court of Appeals to give "testimonial" a broader definition than the Supreme Court, and would also insulate New York somewhat from any subsequent Supreme Court cases that restrict the definition of testimonial (and thus the reach of Crawford).