794 NYS2d 788 | N.Y. Sup. Ct. | 2005
OPINION OF THE COURT
Officer O’Toole has now retired and is living in Ireland. The People have moved to introduce his latent print report into evidence at trial under the business records exception to the hearsay rule. The defendant has objected, and cites People v Rogers (8 AD3d 888 [3d Dept 2004]) in support of his contention that under Crawford v Washington (541 US 36 [2004]) the latent print report would not be admissible under the business records exception because information contained in the report is “testimonial” in nature. In Rogers the Third Department reversed a conviction because the trial court had admitted into evidence a report detailing the results of testing of the victim’s blood. The report had been generated by a private laboratory at the request of law enforcement, and the Court determined that its admission had violated that defendant’s Sixth Amendment right to cross-examine witnesses. The Court stated as to the report that “[b]ecause the test was initiated by the prosecution and generated by the desire to discover evidence against the defendant, the results were testimonial.” (People v Rogers, supra at 891.) The defendant contends that admitting the latent print report into evidence without the ability to cross-examine the report’s preparer concerning, for example, his methods and the care with which he uncovered and lifted the prints, would be a violation of his rights under the Sixth Amendment’s Confrontation Clause.
The People insist that the latent print report is not “testimonial,” and point out that, unlike the blood results in Rogers, it was not prepared at the prosecution’s request, and was made even before the defendant’s identity became known. Although it is unfortunately unclear exactly what the Supreme Court meant
I must conclude that the latent print report is testimonial in nature, and cannot be admitted into evidence at trial in the absence of Officer O’Toole.