People v Abelo, 2010 NY Slip Op 09567 (1st Dept. 2010).
“The evidence which gives rise to the trial error was the testimony of one Kimberly Shaw, a customer representative for the DMV, who was first employed in 2002. She testified to mailing procedures at DMV. Shaw testified that based on an abstract generated on November 23, 2005, defendant’s license had been suspended 57 times on 16 dates between 1983 and 1994 for unpaid tickets. Shaw testified that a driver’s license suspension is mailed to the address on file at the DMV, that such a mailing had occurred in December 1992, and that defendant’s license was suspended on January 4, 1993. The court admitted the 1992 notice of suspension. On cross-examination Shaw acknowledged that she did not work for DMV in 1992, and could not testify concerning standard mailing procedures during that year or those in place in 1993. She also acknowledged that procedures had changed. The court then refused to admit the 1993 suspension notices because Shaw was not familiar with the business practices in place at that time or earlier, but it refused to strike the already admitted 1992 notice.”
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“The People here argue that, having produced Kimberly Shaw, they satisfied their obligation to produce a witness who was subject to cross-examination. While defendant acknowledges that it was clearly not necessary to produce someone who was employed at the time the notice was mailed, he argues that the People were obligated to produce someone who had at least familiarized herself with the procedures current at the time. Moreover, as defendant argues, the trial court’s refusal to admit the 1993 notices of suspension because Ms. Shaw was unfamiliar with the mailing practices in 1993 was inconsistent with admission of the 1992 notice of suspension. The witness made it clear that she was not familiar with the practice in either year.”
“A witness who on cross-examination denies knowing what procedures were used at the time of mailing does not satisfy the obligation to produce a witness who can be adequately cross-examined concerning notice to defendant. In essence, the notice of suspension was admitted without foundation, and under the facts of this case its admission constituted reversible error.”
7 Responses
Yesssss. That’s law. That’s evidence. How beautiful. Good job J.T. in finding that case and staying on top of the issue. Another one for the catalogue.
How can you convict someone of a crime and expose him to jail risk — I put suspended driver’s license defendants in jail when I worked in Suffolk — on such flimsy testimony.
I just wish the courts would let us challenge breathalyzer testimony like they used to when I started practicing law. Did you see this one: People v. Michael Damato, 2010 N.Y. Slip Op. 09525 (2d Dept. 2010)? Unreal.
Ray – when you were an ADA, they let your convict 511’s on an affidavit – that is how old you are and that is why you have such an impeccable record on those cases 🙂
I am going to pull the Damato case.
Yes Jason and when I played football we had no face masks on the helmets.
Question: Can I still utlize your blog while suing you for Elder Abuse. You are the epitome of the insurance company lawyer bully. See how you feel when you have to face Sun Tzu or Slick or maybe Rogak as my lawyer.
You epitomize the eggshell Plaintiff, so I suspect you could retain one of those people you listed.
By the way, have a happy and healthy New Year Ray. Thanks for providing some entertainment on this blog, and I look forward perhaps to the return of the Pit in 2011.
JT
I sue you long time…
To J.T. and all the members of the Defender Family a happy healthy and prosperous New Year.
Hey Ray Zuppa! Hire me when they haul you away. I’ll bring you schfooyadell with a hacksaw inside.