PEOPLE v. WILLIAMS (2021)

ORDERED that the judgment of conviction is affirmed.

Following a jury trial, defendant was convicted of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). On appeal, defendant contends that the judgment of conviction should be reversed and the accusatory instrument dismissed because the mailing records of the Department of Motor Vehicles (DMV) contained United States Postal Service (USPS) hearsay statements and information and should have not been admitted into evidence, and that the testimony of the DMV employee, along with the admission of the mailing records into evidence, violated defendant's Sixth Amendment right to confrontation.

A review of the record indicates that defense counsel did not object to the testimony of the DMV employee, or to the admission of any document into evidence, on Confrontation Clause grounds, and, therefore, this contention is unpreserved for appellate review (see CPL 470.05 [2]; People v Liner, 9 NY3d 856, 856-857 [2007]; People v Fleming, 70 NY2d 947 [1988]; People v Gibson, 163 AD3d 586, 587 [2018]; People v Marino, 21 AD3d 430 [2005]; People v Bones, 17 AD3d 689 [2005]; see also Crawford v Washington, 541 US 36 [2004]), and we decline to consider it in the interest of justice. Defendant's contention that the mailing records, which included information provided by the USPS, were inadmissible because they were created in preparation for litigation is similarly unpreserved for appellate review as defendant raised no such argument in the District Court (see CPL 470.05 [2]).

In any event, the portions of the mailing records regarding acts done by, and documents made by, the DMV were properly admitted into evidence as business records (see CPLR 4518). While it is well settled that “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (People v Cratsley, 86 NY2d 81, 90 [1995] [internal quotation marks and citation omitted]; see also Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 737, 739 [2015]), these records are nevertheless admissible if the recipient can establish personal knowledge of the maker's business practices and procedures, or the recipient can establish that the records provided by the maker were incorporated into the recipient's own records, or are routinely relied upon by the recipient in its business (see People v Cratsley, 86 NY2d at 90-91; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782-783 [2019]; Bank of NY Mellon v Gordon, 171 AD3d 197, 200-203 [2019]; Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d at 739; State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296 [2012]).

Here, since the DMV employee testified that the USPS postal identification numbers included in the mailing records, along with other USPS information, are included as a regular part of these records, the District Court properly admitted the records into evidence, as the DMV empolyee established that the USPS records were incorporated into the DMV's own records (see People v Cratsley, 86 NY2d at 90-91).

Accordingly, the judgment of conviction is affirmed.

RUDERMAN, P.J., EMERSON and DRISCOLL, JJ., concur.