People v. Pacer

• Decision Date: 28 March 2006
• Citation: 847 N.E.2d 1149,6 N.Y.3d 504
• Parties: The PEOPLE of the State of New York, Appellant, v. Stephen M. PACER, Respondent.
• Court: New York Court of Appeals Court of Appeals

847 N.E.2d 1149

6 N.Y.3d 504

The PEOPLE of the State of New York, Appellant, v. Stephen M. PACER, Respondent.

Court of Appeals of New York.

March 28, 2006.

Richard A. Brown, District Attorney, Kew Gardens (Jennifer M. Hagan and John M. Castellano of counsel), and R. Michael Tantillo, District Attorney, Canandaigua, for appellant.

John E. Tyo, Shortsville, for respondent.

Peter Lushing, New York City, and Richard D. Willstatter, White Plains, for New York State Association of Criminal Defense Lawyers and another, amici curiae.

Eliot Spitzer, Attorney General, New York City (Daniel Smirlock and Robin A. Forshaw of counsel), amicus curiae.

OPINION OF THE COURT

ROSENBLATT, J.

The appeal before us presents a Confrontation Clause issue under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004]. Defendant was charged with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a]) and related offenses. At trial, to prove that defendant knew his driving privileges had been revoked and was thus guilty of an aggravated offense, the prosecution introduced an affidavit prepared by a Department of Motor Vehicles official in 2003 describing the agency's revocation and mailing procedures, and averring that on information and belief they were satisfied. The Appellate Division correctly ruled that, under Crawford, the trial court should not have admitted the affidavit.

I.

In 1987, as a teenager lacking a driver's license, defendant pleaded guilty in Wyoming County to driving under the influence of alcohol. He paid a fine and the Commissioner of Motor Vehicles revoked his "privilege of operating a motor vehicle in New York." Shortly thereafter, defendant moved to Georgia, where he successfully obtained a driver's license. On July 19, 2003, 16 years after the conviction, defendant drove in Ontario County, New York, after drinking heavily. He crashed his car, fled the scene and falsely told police that his car had been stolen. The revocation of his New York State driving privileges, however, remained in force.

The People charged defendant with aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a]), two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[2], [3]), falsely reporting an incident in the third degree (Penal Law § 240.50[3]) and leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600[1][a]). After a County Court trial in which defendant testified that he had not known his New York State driving privileges had been revoked, a jury found him guilty on all counts.

The Appellate Division modified the judgment, reversed the conviction for aggravated unlicensed operation, ordered a new trial on that count and sustained the remaining counts (21 A.D.3d 192, 796 N.Y.S.2d 787 [2005]). The Court held that the affidavit introduced by the People to prove defendant's knowledge that his license had been revoked violated his constitutional right to confront the witnesses against him. The Court also held that County Court erred by refusing to charge the lesser included offense of unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509[1]). A Judge of this Court granted the People leave to appeal. We affirm.

II.

The felony offense of first-degree aggravated unlicensed operation has a mens rea element. To be convicted, a defendant must know or have reason to know that his driving privileges have been revoked, suspended or otherwise withdrawn by the Commissioner of Motor Vehicles.¹ Defendants who drive without a license but who neither know nor have reason to know that their driving privileges have been terminated commit a violation (Vehicle and Traffic Law § 509[1]).

Here, defendant testified he never learned that his New York State driving privileges had been revoked. The defense argued that his move to Georgia around the same time as the 1987 proceedings may have prevented notice from reaching him. As their sole proof that defendant knew or had reason to know his privileges were revoked, the People introduced an August 13, 2003 document titled "Affidavit of Regularity/Proof of Mailing" from a Department of Motor Vehicles official, purporting to explain the Department's ordinary mailing procedures for revocation notices. The affidavit contained a statement, on the official's "information and belief," that the ordinary procedures described in the affidavit had been followed in defendant's case.²

Defendant did not object to admission of the underlying certificate of revocation. He did, however, object on Sixth Amendment grounds to the admission of the affidavit.³ County Court overruled the objection.

The People concede that the affidavit is a sworn document prepared by a government official specifically for use by the prosecution at trial. They further concede that defendant never had a chance to cross-examine the affiant and that the prosecution produced no evidence that the affiant was unavailable to testify. The People argue, however, that the affidavit was admissible as a business record or public record, and thus outside the scope of the Confrontation Clause.

We begin our analysis with the Supreme Court's discussion of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004]. There, the Court held that "testimonial" statements not previously subjected to cross-examination are inadmissible against a criminal defendant. The Court did not fully spell out what is "testimonial," but offered some guidance. It referred to "[v]arious formulations" of the "core class of `testimonial' statements," including:

"`ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,'... `extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,' [and] `statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" (Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 [citations omitted].)

Although Crawford repeatedly describes affidavits as typically being testimonial, not all affidavits are inadmissible. The Crawford court concluded that business records would not have been considered testimonial at the time the Confrontation Clause was adopted (541 U.S. at 56, 124 S.Ct. 1354).

Claiming that the challenged affidavit is not "accusatory," the People argue that the affidavit is more like an ordinary business record or public record than a testimonial statement. To make their point, they cite 18th-century English cases showing that hearsay from accusers — like hearsay from direct victims of crime or other witnesses — was barred under English common law. It does not follow, however, that the challenged affidavit is admissible as nonaccusatory hearsay.

For one thing, and contrary to the People's suggestion, the government agent who swore out the affidavit is not a "neutral" officer. The official's assertion of her "information and belief" that the ordinary mailing procedures were carried out in defendant's case is a direct accusation of an essential element of the crime, that defendant knew or should have known of the revocation.⁴ Moreover, because the People presented no other evidence to satisfy this element, the affiant is the closest the People come to having a "witness" to prove that defendant knew or should have known of the revocation.

The People also cite cases in which federal Courts of Appeals have held other types of affidavits not testimonial. These decisions, however, are distinguishable from the case before us.

In United States v. Cervantes-Flores, 421 F.3d 825 [9th Cir.2005], the Ninth Circuit ruled that an affidavit from an immigration officer certifying the absence of a record in the immigration agency's files was admissible as nontestimonial under Crawford. The court reasoned that the record itself, if present, would have been admissible as one maintained in the ordinary course of agency business; its absence was similarly admissible. Here in contrast, the challenged affidavit does not merely assert that the Department had a certificate showing that defendant's license had been revoked. It goes well beyond that, and alleges that the agency took a specific action against defendant based on that revocation — namely, mailing the notice.

Similarly, in United States v. Rueda-Rivera, 396 F.3d 678 [5th Cir.2005], the Fifth Circuit held that a certificate of nonexistence of an immigration record was admissible as a nontestimonial business record, even though the certificate was sworn and created by a government agent for use at trial. In the case before us, however, the prosecution introduced the challenged affidavit to establish that the agency actually mailed out notice to defendant in 1987; it did not merely reveal the ongoing presence or absence of an agency record.

In United States v. Cantellano, 430 F.3d 1142 [11th Cir.2005], the Government sought to prove that the defendant had reentered the country after being deported. This required proof that he had actually left the country after the original deportation. An immigration enforcement agent submitted a "warrant of deportation" attesting that he saw Cantellano leave the...