Defendant is charged by simplified traffic information with aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a]). To establish defendant’s guilt, the People must prove beyond a reasonable doubt that, among other things, defendant operated a motor vehicle on a public highway while knowing or having reason to know that his license or privilege to drive was suspended or revoked. (Id.) During the course of this nonjury trial, the People have introduced into evidence documents from the Department of Motor Vehicles (DMV) to satisfy the notice element of Vehicle and Traffic Law § 511 (2) (a). Specifically, a DMV abstract of defendant’s driving record and a copy of a DMV driver’s license suspension order addressed to defendant were received as People’s exhibits (PX) 1 and 3, respectively. The People have also sought to introduce an affidavit of regularity/proof of mailing executed by Sharon E. Greene, the records manager in the DMV’s Certified Document Center (hereinafter PX 2 for identification or the Greene affidavit). Defendant has objected to admission of the Greene affidavit. For the reasons that follow, the court holds that the Greene affidavit is inadmissible.
Relying on the recent landmark decision of Crawford v Washington (
If this case had been tried before Crawford was decided, the court would have overruled the objection and admitted the Greene affidavit. Under Vehicle and Traffic Law § 214, the affidavit of regularity/proof of mailing is admissible in cases such as this, as presumptive evidence that the notice of suspension, revocation or order was produced and mailed to the defendant in accordance with the DMV’s procedures. (People v Begemov,
Crawford, however, has changed the analysis. (See People v Romero,
Civil Practice Law and Rules § 4518, which codified the New York business records exception to the hearsay rule, is applicable to both civil and criminal cases. (People v Cratsley,
“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”
The three foundation requirements of CPLR 4518 were summarized by the Court of Appeals in Cratsley:
“[F]irst, the record must be made in the regular course of business — reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the functions of the business. Second, it must be the regular course of business to make the record — in other words, the record was*812 made pursuant to established procedures for the routine, habitual, systematic making of such a record. Finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made.” (86 NY2d at 89 .)
Here, PX 3, the driver’s license suspension order, was dated May 22, 1993, and stated that defendant’s license was suspended as of June 12, 1993, due to his failure to appear on May 13, 1993 for a ticket he received on April 6, 1993. PX 3 is plainly a business record, as is PX 1, the DMV abstract, and defense counsel did not object to their admission. The Greene affidavit, by contrast, is not a business record. To the extent that the court knows anything about the circumstances of its creation, that information comes from the document itself. According to the document, it was not executed by Ms. Greene until April 23, 2004, over 10 years after the suspension order was prepared. Therefore, the Greene affidavit clearly was not made at the time the suspension order was made, or reasonably soon thereafter. Indeed, the Greene affidavit was not created for more than six months after the date on which the instant case commenced (Oct. 8, 2003). This court cannot escape the conclusion that the Greene affidavit was created expressly for use in this litigation.
Moreover, the contents of the Greene affidavit are plainly testimonial in nature. For example, paragraph 3 states, among other things, that:
“The [suspension] process is initiated by receipt of complaint portion of the ticket in the Traffic Violations Division in Albany, where personnel search the department’s license file for a record of a New York State driver license. If there is no license record . . . one is created in the department’s driver license file. All pertinent information is then placed on another file: the traffic violations file. The address used in subsequent contacts with the motorist is the address supplied by the motorist to the police officer at the time the summons is issued. This may be different from the address in the department’s license record. It is used because it is the most current address supplied by the motorist. These statements, describing the process by which suspensions are commenced and drivers are notified, contrast*813 sharply with the kind of routine entries of transactions, made in the regular course of business at or near the time when the transactions occurred, that are plainly understood and recognized as business records.”
Post Crawford, the People’s continued reliance on Vehicle and Traffic Law § 214 to permit such affidavits of nontestifying witnesses to be received in evidence to prove an element of the crime .charged is simply untenable. Contrary to the People’s assertion (People’s brief at 5), this court cannot permit the defendant’s right of confrontation to be impaired by receiving the Greene affidavit in evidence. It is also no answer to say, as the People do (id. at 6), that the Greene affidavit should be received because it is reliable. (See Crawford,
Accordingly, the court holds that the Greene affidavit, PX 2 for identification, is inadmissible. Defendant’s objection is sustained.
Notes
. The People have told the court that they would not call Ms. Greene as a witness.
. In their brief to this court, the People incorrectly cite this case as People v Derick. (See People’s brief at 4.)
. See also People v Poillon, NYU, June 15, 2001, at 24, cols 4, 6 (Suffolk County Ct 2001 [“This Court holds . . . that VT.L. Section 214 does not authorize the introduction into evidence of impermissible, non-probative, double hearsay on the issue of notice of revocation or suspension, as such is contained in the putative affidavit of Sharon E. Greene”]); People v D’Agostino,