People v. Austin Cornelius
AD1 order dated November 22, 2011, modifying judgment of conviction. Decision below: 89 A.D.3d 595, 933 N.Y.S.2d 250. Read, J., granted leave April 16, 2012.
ISSUES PRESENTED: (1) Whether trespass notices barring defendant from entering a chain of drugstores were properly admitted as business records and did not violate Crawford. (2) Molineux and Sandoval rulings. (3) The court’s burden-of-proof instruction. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
Issue before the Court: Whether a “trespass notice” (a warning letter issued by a store revoking an individual’s permission to re-enter the store) is “testimonial” evidence under Crawford, or whether the notice can be admitted as a business record without the testimony of the issuing store detective.
Held: The court did not reach the issue, finding instead that any error in the admission of the notice would be harmless.
CAL Observes: The issue upon which leave was granted remains open. One would think that the store security officers purposefully memorialized the defendants banishment from the store in the “trespass notice” reasonably expecting that the notice would be used in a prosecution, thus falling within the gambit of Crawford’s more expansive view of the Confrontation Clause. The issue is sure to arise in the future. Kudos to the trial attorney in the case for not merely objecting to the admission of the trespass notice, but raising a constitutional objection by citing the confrontation clause.