Senate Bill S6637

                                BILL NUMBER:S6637

TITLE OF BILL:

An act
to amend the civil practice law and rules,
in relation to admissibility of certain certified
business records of the department of motor vehicles

PURPOSE:

This bill would permit the introduction of certain certified business
records maintained by the Department of Motor Vehicles ("DMV")
without the need for additional foundation testimony.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Civil Practice Law and Rules
("CPLR") Rule 4518 by adding a new subdivision (h) to provide for the
admissibility of certified DMV records, abstracts or summaries of
records on file with the DMV without additional foundation evidence.

Section 2 of the bill would provide that the bill take effect
immediately.

EXISTING LAW:
              

No such authorization currently exists in law for such records.

LEGISLATIVE HISTORY:

A similar bill was introduced in 2004 (S.6590), 2005
(S.4121/A.8718 which passed the Senate).

STATEMENT IN SUPPORT:

DMV employees are often called upon, by subpoena or otherwise, to
testify in both civil and criminal proceedings regarding the
production, mailing and accuracy of a variety of DMV records, from
suspension and revocation orders to certified abstracts of operating
records. Given the secure processes used to access DMV's electronic
databases to generate the paper records sought to be introduced, such
testimony is largely superfluous. At a time when all State agencies
are compelled to find ways to do more with less, making employees
available to provide testimony (or, in many cases, to wait at a
courthouse only to find that a case has been adjourned or their
testimony not needed) is a hindrance to DMV's efforts to improve
efficiency in its day-to-day operations.

While there will obviously still be cases requiring the testimony of a
DMV witness, such testimony should not be necessary for the routine

authentication and explanation of DMV records.
Most DMV records involved in civil and criminal proceedings are
essentially paper reproductions of electronic records. Properly
certified, they should not require any additional foundation or
explanation

In particular with respect to the mailing of notices and orders of
suspension or revocation, in 2006 DMV began using the United States
Postal Service's (USPS) "Confirm" computerized service to provide
proof that DMV mailed a particular order to the individual named in
the order. To use the Confirm service, DMV affixes a unique Postal ID
number and barcode on each notice of suspension or revocation.
Affixing the number and barcode on the notice indicates that the
notice was mailed using this service. USPS scans the letter at the
postal facility serving the addressee to confirm that the notice was
received at its destination and then transmits that information to
DMV where it is stored electronically. Through the Confirm service,
DMV can electronically verify the exact date and time that the notice
was scanned at a particular USPS facility. All such information is
recited in the proof of mailing record prepared by DMV to establish
that a defendant knew or had reason to know that his or her license
or privilege to operate a motor vehicle has been suspended or revoked.

However, even using this service, two new cases have raised questions
about the usefulness of DMV's proof of mailing record. In People v.
Brown, 31 Misc. 3d 794 (Rochester City Ct. 2011), the court refused
to admit the proof of mailing record as a business record because the
court deemed the explanation of the mailing procedure contained
therein to be beyond the scope of a business record. In People v.
Graham, in an unpublished decision dated May 12, 2011, the Suffolk
County District Court, citing Brown, held that DMV's affidavit does
not meet the VTL § 214 requirement of presumptive notice that the
defendant knew or should have known of the suspension. The proposed
amendment of CPLR Rule 4518 will overcome the statutory infirmities
cited by these rulings and facilitate the use of an efficient,
common-sense approach to proving the receipt of the millions of
notices and orders that DMV mails annually.

This proposal is modeled, in part, after a similar provision with
respect to records or reports of support payments or disbursements
maintained by or on behalf of the Office of Temporary and Disability
Assistance set forth in CPLR Rule 4518(f).

BUDGET IMPLICATIONS:

There should be significant reductions in time spent by central office
staff in receiving and tracking subpoenas and coordinating court
appearances and in time spent in court by field staff responding to
such subpoenas.

EFFECTIVE DATE:

This act shall take effect immediately.