Sunday, October 4, 2009

Affidavit of Regularity/Proof of Mailing from DMV is Testimonial Evidence

In People v Darrisaw (2009 NY Slip Op 06992 [4th Dept 10/2/09]), the defendant appealed from a judgment convicting him upon a jury verdict of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [ii]). The Court reversed because the convciton was based on an Affidavit of Regularity/Proof of Mailing from the Department of Motor Vehicles, whoch denied the defendat his right to confrontation:
In accordance with our decision in People v Pacer (21 AD3d 192, affd 6 NY3d 504), we conclude that the "Affidavit of Regularity/Proof of Mailing" (affidavit) prepared by an employee of the Department of Motor Vehicles (DMV) constituted testimonial evidence that did not fall within the business records exception to the hearsay rule (see CPLR 4518 [a]; CPL 60.10). The affidavit served as "a direct accusation of an essential element of the crime" (Pacer, 6 NY3d at 510) and, indeed, it was the only evidence suggesting that defendant had the requisite notice of his driver's license suspensions. Defendant's opportunity to cross-examine a DMV employee who was not directly involved in sending out suspension notices and who had no personal knowledge of defendant's driving record was insufficient to protect defendant's Sixth Amendment right of confrontation (see Crawford v Washington, 541 US 36). We therefore reverse the judgment and grant a new trial on count two of the indictment.
By contrast, in People v Bush (2009 NY Slip Op 07066 [4th Dept 10/2/09]) the Court held that

Contrary to the contention of defendant, his right of confrontation was not violated by the admission in evidence of a certified abstract of a registration record of the New York State Department of Motor Vehicles. The "various indicia of testimoniality" are not present in the registration record (People v Rawlins, 10 NY3d 136, 151). Rather, the registration record contains only objective facts, its contents are not directly accusatory, and it does not reflect "the exercise of fallible human judgment' " (People v Freycinet, 11 NY3d 38, 41). Similarly, the accompanying affidavit refers only to the authenticity of the registration record and its use in the regular course of business, and it contains no statement concerning the role of the registration record in the case against defendant (cf. People v Pacer, 6 NY3d 504, 510-512).

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