AD1 considers suspension notice foundation issue

A defendant’s confrontation right is violated when documentary evidence of a license suspension is admitted without an opportunity to cross-examine the affiant.  

In People v. Abelo (1st Dept. 12/28/2010), Defendant was convicted at a bench trial of Aggravated Unlicensed Operation of a Motor Vehicle 2° (AUOMV2°). An AUOMV2° conviction requires that the People prove that the Defendant had knowledge or reason to know that he was driving with a suspended license.  To satisfy this element, the People introduced suspension notices through the direct examination of a DMV employee.  The employee testified to having worked for the DMV since 2002 and stated that in 1992 and 1993 the DMV mailed the Defendant suspension notices.  On cross-examination, the employee admitted that she could not testify to DMV mailing procedures during 1992 or 1993.  The trial court refused to admit notices from 1993, but admitted a notice from 1992.

On appeal, the Defendant argued that the People were required to produce a witness who was familiar with DMV mailing procedures of the respective periods for cross-examination.  Three First Department justices agreed with the Defendant.  The court reversed the conviction and ordered a retrial.  The court reasoned that a witness without knowledge of the relevant procedures could not lay the appropriate foundation, nor did the witness satisfy the obligation established by the Confrontation Clause.

The court found this error was not harmless, because the evidence also showed that, despite having a suspended license in the early 1990s, the DMV issued him new licenses on several occasions afterwards when he returned to New York after brief stays in other stays.  This indicated that there was less than overwhelming evidence that the defendant knew that his license was suspended, the key issue in the case.

Justice Nardelli joined Justice DeGrasse in dissent.  The dissent disagreed with the majority’s interpretation of the witness' preparation.  They believed that the witness had familiarized herself with the 1992 DMV mailing procedures, but was not familiar with the 1993 DMV mailing procedures.  Thus the dissent would have affirmed the conviction on the ground that the 1992 notice was properly admitted.  The dissent considered the production of the DMV employee as satisfying Defendant’s confrontation right.  (MM/LC)

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