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The New York Court of Appeals has ruled that a trial court erred when it permitted a Department of Motor Vehicles (DMV) employee to submit an affidavit suggesting that a defendant knew or should have known he was driving with a revoked license. Such knowledge was an element of the felony charge of aggravated unlicensed operation on which the defendant was convicted. People v. Stephen M. Pacer, No. 45. New York’s high court found that under the U.S. Supreme Court’s landmark Crawford v. Washington, 541 U.S. 36, Stephen M. Pacer’s Sixth Amendment rights were violated by the admission into evidence of the affidavit. In Crawford, the justices said that “testimonial” statements that are not subject to cross-examination can’t be used against a criminal defendant. The case involves a man with a long history of driving-related offenses. According to court records, 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 He had been without a valid New York driver’s license since 1987, when it was revoked following a conviction for driving while intoxicated.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 the aggravated unlicensed operation charge on the ground that he was not aware that his New York license was invalid. The prosecution sought 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. An intermediate appellate court reversed the conviction as contrary to Crawford. The New York high court affirmed. Writing on behalf of the court, Judge Albert M. Rosenblatt said: “[T]he 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.” The prosecution had argued that an affidavit is not “accusatory,” and is thus outside the Crawford rubric. Rosenblatt rejected that. The person who swore out the affidavit, he explained, was a government agent, not a neutral officer. In addition, 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 . . . 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” ago.

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