People v Brink, 2006 NY Slip Op 05428 [available here]
In a decision confirming what was already suspected, the Fourth Department held in People v Brink that the so-called "testimonial" rule of Crawford v Washington [541 US 36] is a trial right that does not apply at a pretrial suppression hearing. From the decision:
We reject the contention of defendant that Crawford v Washington applies to his pretrial suppression hearing and that reversal is required because his right of confrontation was violated at the hearing. As the Supreme Court has written, "[t]he right [of] confrontation is basically a trial right." Indeed, "the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the [suppression] court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial."
(People v Brink, 2006 NY Slip Op 05428.)
Unlike the murkiness surrounding the definition of "testimonial", the Supreme Court has pretty consistently telegraphed that it will apply the Confrontation Clause formulation of Crawford only at trial. So the Fourth Department's decision refusing to apply Crawford at sentencing is no big surprise.