| People v Darrisaw |
| 2009 NY Slip Op 06992 [66 AD3d 1427] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy C.Darrisaw, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedMarch 12, 2008. The judgment convicted defendant, upon a jury verdict, of aggravatedunlicensed operation of a motor vehicle in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on count two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofaggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law§ 511 [3] [a] [ii]). In accordance with our decision in People v Pacer (21 AD3d 192 [2005], affd 6 NY3d 504[2006]), we conclude that the "Affidavit of Regularity/Proof of Mailing" (affidavit) prepared byan employee of the Department of Motor Vehicles (DMV) constituted testimonial evidence thatdid not fall within the business records exception to the hearsay rule (see CPLR 4518 [a];CPL 60.10). The affidavit served as "a direct accusation of an essential element of the crime"(Pacer, 6 NY3d at 510) and, indeed, it was the only evidence suggesting that defendanthad the requisite notice of his driver's license suspensions. Defendant's opportunity tocross-examine a DMV employee who was not directly involved in sending out suspensionnotices and who had no personal knowledge of defendant's driving record was insufficient toprotect defendant's Sixth Amendment right of confrontation (see Crawford vWashington, 541 US 36 [2004]). We therefore reverse the judgment and grant a new trial oncount two of the indictment.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Fahey, Peradotto, Green and Pine, JJ.