Some courts have reached that conclusion. ( See e.g. People v Grogan, 28 AD3d 579, 581 [2d Dept 2006], lv denied 7 NY3d 789 [2006] [DNA reports were business records, which are "by their nature . . . not testimonial"]; People v Brown, 9 Misc 3d 420 [Sup Ct, Queens County 2005]; People v Durio, 7 Misc 3d 729, 734 [2005] ["(u)nder Crawford business records are specifically exempted from challenge because they are outside the 'core testimonial statements that the Confrontation Clause plainly meant to exclude'" (citation omitted)]; United States v Feliz, 467 F3d 227, 233-234 [2d Cir 2006], cert denied sub nom. Erbo v United States, 549 US ___, 127 S Ct 1323 [2007] [business records "cannot be testimonial because (they are) fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence"]; State v Forte, 360 NC 427, 629 SE2d 137 [2006], cert denied 549 US ___, 127 S Ct 557 [2006]; State v Norman, 203 Or App 1, 125 P3d 15 [2005].) CPLR 4518 (a), New York's business records exception to the hearsay prohibition, provides:

For the record, we note our agreement with this observation. See United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (holding that a declarant's statements to an individual that the declarant does not know to be an informant "do not constitute testimony within the meaning of Crawford"), cert. denied, 543 U.S. 1079, 125 S.Ct. 938, 160 L.Ed.2d 821 (2005); United States v. Feliz, 467 F.3d 227, 231 (2d Cir. 2006) (observing that "the Confrontation Clause simply has no application to nontestimonial statements"), cert. denied, Erbo v. United States, ___ U.S. ___, 127 S.Ct. 1323, 167 L.Ed.2d 132(2007). Finally, we conclude that the District Court did not impose an unreasonable sentence on Ortega.

The Court of Appeals affirmed Erbo's conviction, United States v. Feliz, 467 F.3d 227, 229 (2d Cir. 2006), and the Supreme Court denied certiorari. Erbo v. United States, 549 U.S. 1238 (2007). Erbo's first motion pursuant to 28 U.S.C. § 2255 was denied, Erbo v. United States, No. 08 Civ. 2881 (HB), 2009 WL 2460998 (S.D.N.Y. Aug. 12, 2009), as was his appeal from that denial, Erbo v. United States, No. 10-100 (2d Cir. June 1, 2010).

541 U.S. 36, 59, 68 (2004). In January 2007, Erbo petitioned the Supreme Court for a writ of certiorari, which was denied in February 2007. Erbo v. United States, 549 U.S. 1238 (2007). On March 19, 2008, Erbo petitioned this Court for a writ of habeas corpus on grounds unrelated to Crawford.

The Supreme Court denied Petitioner's Writ of Certiorari on February 26, 2007. Erbo v. U.S., 127 S.Ct. 1323 (2007). II. LEGAL STANDARD

Moreover, Dr. Shaw's reports were not testimonial in nature and therefore not subject to Crawford. United States v. Feliz, 467 F.3d 227, 229 (2d Cir. 2006), cert. denied Erbo v. United States, 127 S. Ct. 1323 (2007) (holding that "autopsy reports are not testimonial within the meaning of Crawford and, thus, do not come within the ambit of the Confrontation Clause"). Finally, even if Dr. Keen's testimony violated Petitioner's Confrontation Clause rights, he would not be entitled to habeas relief because he was not prejudiced by the admission of the testimony.

Compare United States v. Feliz , 467 F.3d 227, 236–37 (2d Cir. 2006) (concluding that autopsy report is public record and is not testimonial even though medical examiner may understand that report may be available for use at trial), cert. denied sub nom. Erbo v. United States , 549 U.S. 1238, 127 S. Ct. 1323, 167 L. Ed. 2d 132 (2007), with United States v. James , supra, 712 F.3d at 99, 101–102 (concluding that court must consider circumstances of death to determine whether primary purpose of autopsy was for use in criminal prosecution). State vehicle inspection records are created solely for administrative or regulatory purposes.

We emphasize, however, that this expectation must be reasonable under the circumstances and not some subjective or far-fetched, hypothetical expectation that takes the reasoning in Crawford and Davis to its logical extreme. Cf. United States v. Feliz, 467 F.3d 227, 236 (2d Cir. 2006) ("[g]iven that the Supreme Court [in Crawford] did not opt for an expansive definition that depended on a declarant's expectations, we are hesitant to do so here"), cert. denied sub nom. Erbo v. United States, U.S., 127 S. Ct. 1323, 167 L. Ed. 2d 132 (2007); People v. Bradley, 22 App. Div. 3d 33, 41, 799 N.Y.S.2d 472 (2005) (concluding that reasonable expectation of declarant focus may be taken to "logical extreme" if, for example, one were to conclude that any statements made to officer could be expected to be used at trial), aff'd, 8 N.Y.3d 124, 862 N.E.2d 79, 830 N.Y.S.2d 1 (2006). With these principles in mind, we turn to the facts of the present case.

We note that the federal Second Circuit has held that, by their nature, statements properly admitted as business records cannot be testimonial. See United States v. Feliz, 467 F.3d 227, 233 (2d Cir.2006), cert. denied, Erbo v. U.S., 549 U.S. 1238, 127 S.Ct. 1323, 167 L.Ed.2d 132 (2007). At trial, both Ms. Mills and Mr. Williams testified that they are required to keep records pertaining to purchases of ephedrine and pseudoephedrine as a result of store policy and federal law.

In Davis v. Washington, 547 U.S. at 822, the Court, in discussing the parameters of Crawford, held that statements are testimonial when the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Thus, see United States v. Feliz, 467 F.3d 227, 236-38 (2d Cir. 2006), cert, denied sub nom., Erbo v. United States, 549 U.S. 1238 (2007), where the Second Circuit, in finding that autopsy reports were not testimonial within the meaning of Crawford, noted that thousands of routine autopsies were conducted every year without regard to the likelihood of their use at trial. See also People v. Hall, 84 A.D. 3d 79, 81-82 (N.Y.A.D. 1 2011) (noting that Melendez-Diaz did not explicitly hold that autopsy reports are testimonial).