OPINION OF THE COURT
At issue before the court is whether the People are obligated to obtain and produce the raw electronic data from which the DNA profiles in this case were generated.
Defendant moves, under CPL 240.20 (1) (c) and (h), for disclosure of the raw electronic data underlying the DNA testing.
The People oppose defendant’s motion arguing, primarily, that (1) raw electronic data does not constitute a “written report or document” such that discovery would be compelled by CPL 240.20 (1) (c); (2) the People do not possess and therefore have no obligation to obtain and disclose the raw electronic data; and (3) this court has no authority to direct the Office of Chief Medical Examiner (OCME) to create a CD containing the raw electronic data files because such an order, in effect, compels the creation of pretrial evidence and discovery, an ultra vires judicial function.
For the reasons that follow, defendant’s motion is granted.
Background
The defendant here, Frederick Jones, is charged with, among other crimes, possession of a loaded firearm (Penal Law § 265.03). He and his two companions were seated in a car from which the police recovered a gun.
On November 9, 2016, this court held a hearing to gain an understanding of the nature of raw electronic data, how it is collected, its use in the development of the DNA profiles in this case, and the ease or not of its retrieval.
When evidentiary material, such as the gun here, is swabbed for the possible presence of biological material capable of yielding DNA, the police provide the swabs to OCME and request that its Department of Forensic Biology test and analyze the swabbed materials (see Arthur aff at 3 f 4). In this case, the People also moved for an order, pursuant to CPL 240.40 (2) (b) (v), compelling defendant to provide a saliva sample that, once provided, was submitted by the People to OCME’s Department of Forensic Biology for comparison against the DNA profiles generated from the biological material obtained from the gun (People v Jones, Bronx County, Sept. 14, 2015, Rodriguez-Morick, J., indictment No. 2118-2014 [granting People’s motion to compel buccal swab]).
If DNA is detected in the biological material recovered, the DNA is extracted, quantified, and amplified. Defendant’s saliva sample, obtained via the buccal swab, goes through the same process. As relevant here, electrophoresis, the next step of DNA testing, is a data collection process during which the DNA fragments are “run” through an “instrument”—in this case, the 3130 Genetic Analyzer. As the DNA fragments travel through capillaries or tubes, the instrument collects information from the DNA fragments such as the fragments’ allelic ranges and separates alleles according to size. This information is what comprises, in part, raw electronic data captured in a unique *.fsa file, which file is created by the 3130 Genetic Analyzer software.
To save time, several DNA samples from different cases are tested and analyzed all at once and travel together during each of the stages of DNA testing and analysis. The entire batch of DNA samples analyzed in this way is called a “run” and may include up to 96 DNA samples. Once these DNA samples are analyzed by the gene-analyzing instrument, the entire run of resulting *.fsa files is stored in a single folder and assigned a unique folder name. This run folder is saved on OCME’s network drive and named after the gene-analyzing instrument used and year and month in which the run was completed.
Each run folder contains not only the individual DNA samples that were run together but also contains the extraction negative control and the amplification positive and negative controls that were used during DNA testing and analysis for the entire run. Just as each DNA sample has its own unique *.fsa file name, so too do each of the controls.
As relevant here, positive and negative controls are used to prevent one DNA sample from contaminating another and to ensure testing accuracy. A positive control is essentially a test sample engineered to yield a specific, known result when OCME’s equipment is working properly. A negative control, on the other hand, is also a test sample but one that, in uncontaminated conditions, will contain no alleles or other indicia of DNA, the presence of which would indicate cross-contamination among the samples of a run. Whatever controls are used in a run are preserved and stored in the same run folder in which the individual DNA sample *.fsa files are stored. All together, these files constitute raw electronic data. (See hearing tr at 15, lines 14-18; at 18, lines 2-22; at 45, lines 16-18.)
The long and short of this is that the raw electronic data— that is, each of the individual DNA sample and control *.fsa files—is highly organized on OCME’s network drive. Retrieving this data requires going through a three-step process of searching for the following: (1) a folder name reflecting the gene-analyzing instrument used plus the date of the run; (2) within that folder, the relevant individual sample files, i.e., the unique *.fsa file(s) for the individual DNA sample(s) relevant to a case; and (3) the *.fsa files for each of the controls used.
Analysis
Raw Electronic Data is Discovery Material under Article 240
The statutory text of CPL 240.20, the statutory framework of article 240, its legislative history, and Court of Appeals precedent all support treating raw electronic data as discovery material under CPL 240.20.
Section 240.20 of the Criminal Procedure Law requires a prosecutor to disclose to a defendant certain “property” including “[a]ny written report or document, or portion thereof, concerning a . . . scientific test . . . relating to the criminal action . . . which was made by, or at the request or direction of a public servant engaged in law enforcement activity” (see CPL 240.20 [1] [c]).
In the article’s definition of terms, the legislature defined “property” as “including, but not limited to” a catalogue of things set forth under that subdivision (CPL 240.10 [3]). That catalogue does not include “raw electronic data.” Yet, in ordinary English, use of the verb “include” signals that the list of items is a non-exhaustive, exemplary one and therefore items of discovery may include “property” not expressly listed.
Not only does use of the term “include” support a broad rather than a narrow reading, article 240’s statutory framework supports an expansive interpretation as well.
The language of CPL 240.20 (1) (f), for example, mandates disclosure so as to permit a defendant to conduct his or her own testing on evidentiary material (see e.g. People v Metivier,
Section 240.40 (1) (c), to take another example, permits a trial court to order discovery “with respect to any other property” so long as such discovery is, inter alia, “material to the preparation of his or her defense, and . . . the request . . . reasonable.”
And the Court of Appeals has previously expressed an expansive view of discovery (see e.g. People v Colavito,
However, all that can be said of Colavito, without diminishing or expanding its holding, is that it made understandable the distinction between evidentiary material and discovery material. An ex-deputy sheriff, Colavito was convicted of grand larceny and related charges because he misappropriated checks, made them out to “Postmaster,” and purchased money orders which he then used for personal expenses. The actual money orders that defendant purchased were not produced before trial because the prosecution had not obtained them until after the trial was already underway. Defendant argued in favor of reversal because, in relevant part, the prosecution had violated CPL 240.20 in failing to obtain and disclose the money orders prior to trial.
Ruling against defendant, and writing for the majority of the court, the Honorable Joseph W. Bellacosa first noted that, historically, court-ordered discovery was not statutorily or constitutionally authorized (Colavito,
However, where the material sought is of a type contemplated by CPL 240.20, i.e., “property” as defined in CPL 240.10 (3), the People are obligated to disclose it to the defense when that material is in the prosecution’s possession, and, in some cases, even when it is not (see e.g. DaGata,
Here, raw electronic data constitutes “property,” i.e., discovery material, under CPL 240.20 (1) (c) because it constitutes a “portion” of a written report that
“concernís] a . . . scientific test [DNA testing by OCME] . . . relating to the criminal action [the instant case] . . . which was made by, or at the request or direction of a public servant engaged in law enforcement activity [in this case the New York City Police Department and the People].”
Because the Office of Chief Medical Examiner Performed the DNA Testing Done Here at the Behest of Law Enforcement, the Raw Electronic Data Falls within the Purview of CPL 240.20 (1) (c)
Relying on People v Washington (
But the issue is not as simple as that, for the question of whether OCME serves law enforcement is not one given to static resolution. Rather, as aptly noted by the Honorable Elisa S. Koenderman in People v Gills (
On the other hand, when OCME tests and analyzes DNA evidence at the request of law enforcement, it does so “with the primary . . . purpose of proving a particular fact in a criminal proceeding—that defendant possessed the gun and committed the crime for which he was charged” (People v John,
“The electronic raw data therefore is discoverable under the rule which permits the defendant to view the prosecution’s scientific evidence” (Gills,
Obtaining and Disclosing Raw Electronic Data is Not Unduly Burdensome
Nowhere in section 240.20 of the Criminal Procedure Law did the legislature exempt from the statute’s ambit materials that are too burdensome to produce (see id., passim). Rather, as the Court of Appeals has made abundantly clear, “section 240.20 is generally construed as a mandatory directive, compelling the People to provide the items when sought by the defendant” (DaGata, 86 NY2d at 44 [emphasis added]). The issue of burdensomeness, then, is not considered by the court unless and until the party from whom discovery is sought moves for a protective order pursuant to CPL 240.50 (1), which, though it does not expressly authorize trial courts to deny burdensome discovery requests, permits the regulation of discovery based on “any . . . factor or set of factors which outweighs the usefulness of the discovery.”
Here, the People make no such motion nor do they explicitly contend that OCME would be unduly burdened if the court were to compel production of the electronic raw data. Instead, this argument was made obliquely in the opposition papers and at the hearing (see e.g. aff in opp at 4-6 [detailing, at length, the steps an OCME criminalist must take to produce the raw electronic data]; aff in opp to subpoena motion at 21 n 12 [asserting that OCME counsel’s testimony before a different court, including her likening the process of retrieving and providing the *.fsa files to “pulling a card from a deck of cards,” was a “gross . . . oversimplifi(cation) (of) the process”]; hearing tr at 17, lines 3-7, 14-17 [“(S)ince the . . . case files . . . often . . . contain multiple runs of sometimes multiple samples, (the assigned criminalist) would have to go in and basically find all the individual FSA files for all the samples that were run that were associated with this case . . . (and) also (locate) the FSA files for the controls that were associated with that run”]).
In another unrelated case (cited by the People), a court of concurrent jurisdiction determined, based in part on an OCME criminalist’s affidavit, that the “process of identifying and compiling the raw data may take several hours to complete” (People v Mohammed, 52 Misc 3d 242, 244 [Sup Ct, Bronx County 2016]).
Given the absence of any evidence demonstrating that an OCME criminalist would be required to spend several active hours devoted solely to assembling the *.fsa file(s) and burning them onto compact discs, the court finds that production of this type of discovery outweighs any real or imagined burden. This is especially true considering that DNA testing and analysis is “highly technical [in] nature” and that it is possibly “open to interpretation given the rapid pace of advances in the development of this field” (DaGata,
Further, while the People argue that raw electronic data is useless to defense counsel and causing such property to be made available is futile, it is simply not for the People, nor for this court, to decide whether defense counsel can make any use of such property (see DaGata,
The People next argue that requiring OCME to ferret and record onto a CD the *.fsa files is tantamount to directing the People to “create discoverable evidence” and that any such exercise of power by the court is ultra vires.
Not only is this argument unavailing, it displays a failure to acknowledge or understand the distinction between evidentiary and discovery materials.
In Matter of Farrell v LaBuda (
But LaBuda’s holding is not contrary to the holding here because the court is not requiring OCME to perform a DNA comparison nor is OCME being required to perform its analysis in any particular way. Rather, the court is merely directing the People to cause OCME to retrieve and disclose data that has already been created, that was generated at the People’s request, and that will form the basis of expert documentary and testimonial evidence at trial.
Moreover, the contention that courts do not have the power to direct the production of discovery material is plainly incompatible with the People’s application in this and other cases for orders, pursuant to CPL 240.40 (2) (b) (v), compelling defendants to provide saliva samples for DNA testing—a directive that implicates a defendant’s Fourth Amendment rights (People v Addison,
Because the court concludes that the materials here constitute properly demanded discovery (see supra at 751), the court need not address the People’s remaining arguments.
For all these reasons, defendant’s motion is granted.
Notes
. Although the parties use “electronic raw data” and “raw electronic data” interchangeably, this court subscribes to the American Bar Association’s use of “raw electronic data” (see e.g. ABA Standards for Criminal Justice: DNA Evidence standard 16-4.1 [a] [viii] [3d ed 2007]).
. On January 25, 2017, this court issued an order directing the People to obtain from the Office of Chief Medical Examiner the raw electronic data at issue here and ordered its disclosure. This decision sets forth the court’s reasoning.
. For purposes of this motion, the court accepts as true the facts asserted in the felony complaint.
. The People’s characterization of the court’s hearing on this issue as “unprecedented,” suggesting that the court has somehow exceeded its authority (aff in opp to subpoena motion at 3-4 ¶ 8), ignores the court’s power “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it” (Judiciary Law § 2-b [3]).
. The .fsa extension is merely a file extension that indicates the file format, just as a .doc extension indicates that a file is in Microsoft Word
. This ruling is just another on one side of a major conflict among a multitude of state trial courts on this issue. On one side are those cases with which this ruling is in accord (People v Gills,
. Of course, People v Metivier and CPL 240.20 (1) (f) refer to defendant’s right to perform scientific tests and experiments on recovered evidentiary material, which material is not the kind sought here; defendant seeks, not the biological material recovered at the scene, but the data and information yielded by the performance of DNA testing on that biological material. But in this context, the treatment of discovery material as opposed to evidentiary material should not differ (see People v Freshley, 87 AD2d 104, 112 [1st Dept 1982] [“The rule is plain that where the prosecution is permitted to call a witness, expert or not, who testifies as to a fact in issue or a conclusion to be drawn, the defendant is entitled to examine the underlying data, the basis for the testimony”]). Providing to the defense the underlying data and information used by prosecution experts in their scientific experiments permits defense experts to replicate and therefore test any such scientific experiments and conclusions.
. The prosecution cites People v Beckham (
. When the second comprehensive iteration of CPL 240.20 was enacted in 1979 (the first was in 1971), the legislature indicated that the bill represented a “significant expansion of discovery in criminal cases, and, most importantly, establishes for the first time discovery procedures which can be conducted by the parties themselves without the need of motion practice and court orders” (Mem of Senator Ronald B. Stafford, Bill Jacket, L 1979, ch 412, 1979 NY Legis Ann at 250). The bill jacket of the 1982 amendment reveals that the legislature sought an increased exchange of “documentary and testimonial information . . . and provides that such information will be exchanged without the need for a court review” (Governor’s Approval Mem, Bill Jacket, L 1982, ch 558, 1982 McKinney’s Session Laws of NY at 2618). The enactment of and subsequent amendments to this provision reflect an effort by degrees to “improve! ] the adversarial truth seeking process” (id.) by mandating broader and earlier access to discovery material (see e.g. CPL 240.20, as added by L 1979, ch 412, § 2, as amended by L 1982, ch 558, §§ 4, 5 [expanding CPL 240.20 (1) (c)-(d) to include materials “made by a person
. The People concede that the demanded material is not obtainable by subpoena duces tecum (see aff in opp to subpoena motion, passim).
. The People asseverate that “the electronic raw data has already been provided to defendant through the OCME case files. The electronic raw data generated in association with the DNA testing performed in this case, referred to as ‘electropherograms[,’] is contained in the OCME case files” (aff in opp at 3). This is patently misleading because no electronic files whatsoever have been produced. Production of the forensic biology case file, which consists of printouts and other hard-copy materials, is simply not the equivalent of producing electronic or digital files.
. The late Judge Henry Friendly, in a case involving a discovery dispute, made the following observation, fitting here, that he was surprised
“at the Government’s willingness, not unique to this case, to imperil convictions hoped to be obtained after immense effort,by cavilling over the delivery of such [material], whose admission would not add appreciably to the strength of the defense but whose erroneous exclusion might lie just beyond an appellate court’s power of rescue under the harmless error rule” (United States v Borelli, 336 F2d 376, 393 [2d Cir 1964]).