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NEW YORK � In the latest application of a 2004 U.S. Supreme Court Confrontation Clause landmark ruling, New York’s Court of Appeals on Tuesday unanimously held that a trial court erred when it permitted a Department of Motor Vehicles employee to submit an affidavit suggesting that a defendant knew or should have known he was driving with a revoked license. Such knowledge is an element to the felony charge of aggravated unlicensed operation, on which the defendant was convicted. The state judges found that, under Crawford v. Washington, 541 U.S. 36, Stephen Pacer’s Sixth Amendment rights were violated by the admission into evidence of the affidavit. They rejected a prosecution claim that such a document is more akin to a business record than a testimonial statement. People v. Stephen M. Pacer, 45. The Crawford case came to the Court of Appeals after Judge Albert Rosenblatt granted leave. It centers on a man with a long history of driving-related offenses. Court records show that after leaving a bar in 2003, Pacer apparently lost control of his car in Ontario County, N.Y., and crashed into a trailer park. He had been without a valid New York driver’s license since 1987, when it was revoked following a conviction for driving while intoxicated. At trial, Pacer challenged one of the charges, the aggravated unlicensed operation count, on the ground that he was not aware that his New York license was invalid. Shortly after the 1987 incident, Pacer moved to Georgia, where he was granted a license. The prosecution attempted to establish that Pacer knew or should have known that he was without a valid New York license by offering an “affidavit of regularity/proof of mailing.” In it, a state employee described the DMV’s procedures for mailing revocation notices, adding that upon “information and belief” Pacer’s had been mailed within the normal course of business. The Appellate Division, 4th Department, reversed Pacer’s conviction as contrary to Crawford, and Tuesday the Court of Appeals unanimously affirmed in an opinion by Rosenblatt. “[T]he lack of a live witness to confront eliminated defendant’s opportunity to contest a decisive piece of evidence against him,” Rosenblatt wrote. “This is exactly the evil the Confrontation Clause was designed to prevent.” In Crawford, the Supreme Court said that “testimonial” statements that are not subject to cross-examination cannot be used against a criminal defendant. However, the justices did not fully define what they meant by “testimonial,” leading to some confusion at the trial courts. Here, for instance, the prosecution argued and the trial court agreed that an affidavit is not “accusatory” and that it more closely resembles a public or business record that would not fall under the Crawford rubric. But the Court of Appeals rejected that reasoning, although acknowledging that some federal courts have held that not all affidavits are testimonial. ‘DRAMATIC’ CHANGE Here, Rosenblatt explained, the person who swore out the affidavit was a government agent, not a neutral officer. Additionally, he said that the agent’s statement that upon “information and belief” the revocation notice was mailed to Pacer amounted to a point-blank accusation of a crucial element of the crime. “Defendant had no chance to inquire whether the Department [of Motor Vehicles] sometimes makes mistakes in mailing revocation notices; whether there were other drivers in the Department database with the same name of the 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,” Rosenblatt wrote. John Tyo of Shortsville, N.Y., argued for the defense. Tyo said the decision will impact prosecutions for aggravated unlicensed operation since prosecutors have for decades relied on affidavits to prove the “knew or should have known” element. “This is a dramatic procedural change for prosecutors,” said Tyo. “They have been able to rely on an affidavit for all these years and now they are going to have to find other ways to prove what the affidavit sought to prove. The problem is there is such a large number of prosecutions for [aggravated unlicensed operation] that if they have to bring a live witness in for every case it will be a real albatross around their necks.” Ontario County District Attorney R. Michael Tantillo said the impact is uncertain, but agreed that the live testimony of a motor vehicles employee will now be necessary in these cases. “Hopefully, the impact won’t be terribly significant because the decision did recognize that there are different types of documents and certificates that can still be received into evidence without live testimony,” Tantillo said. “The key in this case was that the affidavit . . . specifically created for a prosecution. That is what Crawford appears to render impermissible.” John Caher is a reporter with the New York Law Journal, a Recorder affiliate.

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