PEOPLE v. BAKER

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Wayne BAKER, Appellant.

Decided: November 24, 2006

Present:  ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ. John Brian Macreery, Katonah, for appellant. Janet DiFiore, District Attorney, White Plains (Jamie E. Fair, Richard Longworth Hecht and Anthony J. Servino of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Town of Mamaroneck, Westchester County (Jean Brescia, J.), rendered on February 14, 2005.   The judgment convicted defendant, upon a jury verdict, of aggravated unlicensed operation of a motor vehicle in the third degree.

Judgment of conviction reversed on the law, accusatory instrument dismissed and fine, if paid, remitted.

Following a jury trial, defendant was convicted of aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle Traffic Law § 511 [1] [a] ).   During the People's case in chief, the trial court admitted into evidence defendant's two page electronically-generated driving abstract, which was certified by the Commissioner of Motor Vehicles;  an order of suspension or revocation, dated March 12, 1997, certified by the Commissioner of Motor Vehicles;  an undated document entitled “Affidavit of Regularity/Proof of Mailing,” which was signed by Sharon Greene, a clerk in the Department of Motor Vehicles, and a document entitled “Certified Abstract of Driving Record,” which was also signed by Greene.   Said documents were admitted over defendant's objection that they were inadmissible pursuant to Vehicle and Traffic Law § 214 since the “Affidavit of Regularity/Proof of Mailing” was not notarized.   At the close of the People's case, defendant moved for a trial order of dismissal on the ground, inter alia, that the “Affidavit of Regularity/Proof of Mailing” should not have been admitted into evidence since it was not notarized.

 Vehicle and Traffic Law § 214 creates a statutory exception to the hearsay rule in which an affidavit of regularity/proof of mailing, order of suspension/revocation and a defendant's driving abstract are admissible into evidence, despite their ability to be independently admitted pursuant to any evidentiary hearsay exception, which, in turn, creates a presumption of mailing (and knowledge) which may be rebutted by the defendant (see People v. Meyer, 177 Misc.2d 537, 679 N.Y.S.2d 497 [App. Term, 9th & 10th Jud. Dists. 1998] ).   Herein, the undated document entitled “Affidavit of Regularity/Proof of Mailing” contains no notary signature and stamp and, therefore, is not an affidavit despite its title.   In addition, said document is not admissible into evidence pursuant to any other statutory or common-law public records hearsay exception, and the People presented no other evidence regarding the mailing of the order of revocation.   Consequently, the People did not create a presumption of mailing and knowledge.   Moreover, Greene's “Certified Abstract of Driving Record,” in which she states that the aforementioned documents were made in the regular course of business at the time of each event recorded or within a reasonable time thereafter, was not admissible pursuant to Vehicle and Traffic Law § 214.   Unlike the certifications by the Commissioner of Motor Vehicles, this court cannot take judicial notice of Greene's responsibilities, and the People did not establish the requisite foundation to admit the document pursuant to CPLR 4518 or the common-law public records hearsay exceptions.

We note that we need not determine whether said documents would, in any event, have been inadmissible pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004];  see People v. Pacer, 6 N.Y.3d 504, 814 N.Y.S.2d 575, 847 N.E.2d 1149 [2006], since defendant did not raise a Crawford objection to their admissibility in the court below (see People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] [“defendant's failure to raise a Confrontation Clause objection precluded the trial court and prosecution from considering and, thus, avoiding any constitutional error which ․ differs from the trial evidence error which was preserved”] ).   However, it should be noted that whenever a trial court confronts a Crawford objection under similar circumstances, the recent Court of Appeals decision in People v. Pacer, 6 N.Y.3d 504, 814 N.Y.S.2d 575, 847 N.E.2d 1149, supra must be considered.

Consequently, we find that the trial court improperly denied defendant's motion for a trial order of dismissal since the People failed to establish their prima facie case, which includes a showing of defendant's knowledge of the revocation, in that they never created a presumption of mailing of the order of revocation.   Accordingly, the accusatory instrument is dismissed.   We pass on no other issue.