Friday, June 09, 2006

AD4: testimonial hearsay not admissable at persistent violent felony offender hearing

People v Williams, __ AD3d __ [available here]

Deciding an issue of first impression in New York, the Fourth Department holds in a decision handed down today that the "testimonial" hearsay rule promulgated in Crawford v Washington applies at persistent violent felony offender hearings in New York to exclude testimonial hearsay absent an opportunity to cross-examine the declarants. I have discussed this previously open question here.

At issue in Williams was "an affidavit of the Criminal History Bureau" submitted by the People at defendant's persistent violent felony offender hearing to prove up the fact of the requisite prior convictions. As described by the Court, the affidavit

referred to four fingerprint cards of "Michael Williams" that were obtained in connection with the present felony and three earlier felonies that occurred in 1977, 1980 and 1995. The director asserted in his affidavit that the fingerprint cards were compared and that "staff determined" that the fingerprints on those cards were the fingerprints of the same Michael C. Williams who was before the court at sentencing.

(Williams, __ AD3d at __.)

Although noting that the right on confrontation is a trial right that does not usually apply at sentencing, the Fourth Department nevertheless concluded that New York's recidivist sentencing statute specifically makes the right of confrontation (and by extension the rule set forth in Crawford v Washington) applicable at a persistent felony offender hearing and the fingerprint affidavit should have been excluded. From the decision:

We conclude . . . that the affidavit of the director of the Criminal History Bureau is not admissible under New York law, even in a sentencing proceeding. [...]

[T]he director's affidavit was testimonial in nature, and the "'testimonial' statements [in the adffidavit were] not previously subjected to cross-examination [and thus were] inadmissible against [this] criminal defendant". At a hearing to determine whether a defendant is a persistent felony offender, "[t]he burden of proof is upon the people and a finding that the defendant has been subjected to a predicate violent felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt." (CPL 400.15[7][a]; see CPL 400.16[2].) Here, the affidavit of the director would not be admissible at trial, and thus cannot constitute the requisite proof.

(Id. at __ [citations omitted].)

This is a welcome result--given the enormous stakes involved in persistent felony hearings (potentially enhancing a defendant's sentence to 25 years to life), it makes sense that defendants should enjoy the same evidentiary protections at a persistent felony offender hearing that they would at trial. The legislature necessarily intended that this should be so when it specified in section 400.15[7][a] of the CPL that the prior felonies must be proved by "evidence admissible under the rules of evidence applicable to a trial of the issue of guilt." (CPL 400.15[7][a].) Today's decision in Williams vindicates that intent.