55 Misc. 3d 743
N.Y. Sup. Ct.2017Background
- Defendant Frederick Jones is charged with possession of a loaded firearm; a gun recovered from the car was submitted to OCME Forensic Biology, which identified a three-person DNA mixture and matched Jones as a possible contributor.
- The OCME processed evidence and generated raw electronic DNA output files (.fsa) from runs on a 3130 Genetic Analyzer; those .fsa files and associated run controls comprise the “raw electronic data.”
- OCME stores run folders (containing individual sample .fsa files and positive/negative controls) on a network drive; retrieving and burning relevant .fsa files to CD involves locating the run folder, selecting sample and control files, and formatting/burning discs (the court heard testimony estimating limited active time to compile and up to 45 minutes to format a CD).
- Defendant moved under CPL 240.20(1)(c) and (h) for disclosure of the raw electronic data underlying the DNA profiles; the People opposed, arguing the data is not a “written report or document,” is not in their possession or control (OCME is independent), and that ordering production would amount to compelling creation of evidence and be ultra vires.
- After a hearing, the court held that the raw electronic data is discoverable under CPL 240.20 and issued an order directing the People to obtain and disclose the .fsa files from OCME.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether raw electronic DNA data (.fsa files) is discoverable under CPL 240.20(1)(c) | Raw electronic data is not a "written report or document" and thus not discoverable as a matter of right | Raw electronic data is part of the scientific test output and constitutes "property" or a "portion" of a written report relating to the test | Raw electronic data is discoverable under CPL 240.20(1)(c) as property and a portion of the scientific test materials used by the prosecution |
| Whether the People must obtain/produce OCME’s raw electronic data when OCME is not under the prosecutor’s control | OCME is independent; the People do not possess the files and cannot be compelled to obtain them | OCME performed testing at the request of law enforcement; the People must make diligent efforts to cause such property to be made available | Because OCME tested the evidence at law enforcement’s request, the raw data falls within CPL 240.20 and the People must obtain/disclose it (diligent, good faith effort standard applies) |
| Whether compelling OCME to retrieve and provide .fsa files is unduly burdensome or amounts to ordering creation of evidence (ultra vires) | Compiling/burning raw files is burdensome and the court cannot direct creation of pretrial evidence | Retrieval is a discrete, limited administrative task; court may regulate discovery and condition orders on disclosure | Court found production not unduly burdensome and that directing retrieval of already-generated files is permissible (not ultra vires) |
| Whether the utility of raw electronic data to the defense outweighs disclosure | People asserted the data is futile/useless to defense experts | Defense argued access to underlying data is necessary to permit independent testing/replication and assess prosecution experts | Court held usefulness is for defense counsel/experts to evaluate; access must be provided under article 240 principles |
Key Cases Cited
- People v. Colavito, 87 N.Y.2d 423 (N.Y. 1996) (distinguishes evidentiary material from article 240 discovery; discussed scope of prosecutor's obligation)
- People v. DaGata, 86 N.Y.2d 40 (N.Y. 1995) (broad pretrial disclosure; FBI lab notes discoverable despite not being in prosecutor's possession)
- People v. John, 27 N.Y.3d 294 (N.Y. 2016) (recognizes OCME Forensic Biology primarily provides DNA testing for police/prosecutors; context for OCME’s role)
- People v. Washington, 86 N.Y.2d 189 (N.Y. 1995) (addresses OCME independence and Rosario implications)
- People v. Copicotto, 50 N.Y.2d 222 (N.Y. 1980) (supports broad pretrial discovery policy)
- People v. Metivier, 210 A.D.2d 260 (App. Div. 1994) (defendant entitled to independent testing of seized physical evidence)
- United States v. Borelli, 336 F.2d 376 (2d Cir. 1964) (criticizes withholding of material discovery and emphasizes risk to convictions from unjustified nondisclosure)