No. 107 People v Joshua Liner

Joshua Liner was detained by security guards at a Duane Reade store at 773 Lexington Avenue in Manhattan after they saw him shoplifting $77.80 worth of toothpaste and cold medicine in April 2004. They also found two kitchen knives from a different store in his pockets. Liner was indicted on a misdemeanor charge of petit larceny, two felony counts of criminal possession of a weapon in the third degree and, based on two "trespass notices" that Liner signed when he was caught shoplifting at other Duane Reade stores in 2000 and 2002, a felony count of burglary in the third degree.

The trespass notices were used to establish the illegal entry element of the burglary charge. One
stated, "I, Joshua Liner, understand that my privilege to enter all Duane Reade stores is revoked. I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State Penal Law and any other appropriate criminal charges." The other was similar. Both notices were issued by Duane Read employees, who signed as witnesses and filled in Liner's name, address, and birth date. Liner, who represented himself at trial, objected to admission of the trespass notices without testimony from the employees who filled them out, saying "someone has to have first-hand knowledge."

Supreme Court admitted the notices into evidence under the business records exception to the hearsay rule. Liner was convicted of all charges and sentenced to 3½ to 7 years in prison.

The Appellate Division, First Department affirmed, saying the notices "were properly admitted
as business records and did not violate defendant's right of confrontation" under Crawford v Washington (541 US 36), "even assuming that one purpose of such a notice is to prove, at a later trial, that the defendant knew his or her entry was unlawful.... The notices, generated long before defendant's arrest, were not prepared by or on behalf of law enforcement, nor were they created solely for the purpose of criminal prosecution...."

Liner contends the notices were testimonial, and therefore inadmissible under Crawford, because they "were prepared under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for litigation later" and because "the primary purpose of the statements was to establish the illegality of any later entrance into Duane Reade at a subsequent prosecution." He argues that he "had no chance to challenge the illegal entry element of the burglary count" because, without an opportunity to cross-examine the store employees who prepared the notices, he "could not ask about their authority or basis for revoking a license to enter."