Opinion
Indictment No. 70053-23
12-13-2023
The People of the State of New York, v. Darwin S. Gonzalez-Mendoza, Defendant.
Putnam County Legal Aid Society, Inc. Attorneys for Defendant Darwin S. Gonzalez-Mendoza Attn: Marisa N. Finkelberg, Esq. Putnam County District Attorney's Office Attn: ADA Melissa Lynch
Putnam County Legal Aid Society, Inc. Attorneys for Defendant Darwin S. Gonzalez-Mendoza Attn: Marisa N. Finkelberg, Esq.
Putnam County District Attorney's Office Attn: ADA Melissa Lynch
Hon. Anthony R. Molé, Judge
The following papers were read and considered on the motion (mot. seq. no. 4) by DARWIN S. GONZALEZ-MENDOZA (defendant) requesting various forms of relief: (a) made pursuant to CPL 200.95 to compel the People to comply with his demand for a bill of particulars and accordingly respond to same; (b) compel the People to furnish certain discovery in compliance with CPL article 245 by supplying raw electronic laboratory data and the standard operating procedures from the New York State Police Forensic Investigation Center and/or the Crime Laboratory System; (c) suppressing the DNA paternity test conducted or, alternatively, holding a Frye hearing to determine whether the procedures followed for the paternity test are generally accepted within the relevant scientific community; (d) directing the People to file a supplemental certificate of compliance; (e) conducting a CPL 30.30 (5) hearing to determine the validity of the People's certificates of compliance and fashioning any appropriate remedy; and (f) granting defendant leave to file additional or supplemental motions if needed under CPL 255.20:
Papers:
• Notice of Motion; Defense's Affirmation in Support; Exhibits A-J
• People's Affirmation in Response; Attachments
• Affirmation in Reply
In disposing of the motion, the Court finds and determines as follows:
For purposes of deciding the various branches of defendant's motion, the Court shall set forth an abbreviated recitation of the relevant facts, as necessary, as well as the significant procedural history. The undisputed facts are also set forth in the undersigned's prior Decisions and Orders dated July 7, 2023 and July 24, 2023 - which are incorporated by reference herein - the latter being a decision on the omnibus motion.
Defendant faces a four-count indictment. He is charged with rape in the third degree in (two counts), endangering the welfare of a child, and forcible touching. The criminal charges arose out of serious allegations by defendant's stepdaughter who avers that he had sexual intercourse with her on separate occasions in 2018, and impregnated her when she was a minor. In June of 2019, the female victim gave birth to a baby girl (hereinafter referred to as "the minor").
In July of 2023, this Court granted the People's motion to compel defendant to submit to a buccal saliva swab in order to collect his deoxyribonucleic acid (DNA) for the purpose of determining the minor's paternity (see CPL 245.20 [1] [e]; Matter of Abe A., 56 N.Y.2d 288, 291 [1982]). Buccal swabs were provided by the victim, the minor, and defendant, and then sent to the laboratory of the New York State Police Forensic Investigation Center (hereinafter the FIC) for DNA testing and analysis to determine the minor's paternity. Based on a lab report from the FIC, the DNA and paternity testing results demonstrate a greater than 99.99% probability of defendant's paternity of the minor. Essentially therefore, the DNA test results tend to establish that defendant is the probable father of the minor.
Defendant filed the subject motion on November 3, 2023. The People, in turn, filed response papers on November 20, 2023. Reply papers were filed by defendant on November 22, 2023. The motion is deemed fully submitted.
Before delving into the substantive merits of the motion, the Court will first address certain branches, in turn, which deal with procedural and discovery matters, and upon review, have been rendered moot for different reasons. Typically, "the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy" or issue (People v Shim, 139 A.D.3d 68, 72 [2d Dept 2016], lv denied 27 N.Y.3d 910 [2016] [internal quotation marks and citations omitted]; see generally Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715 [1980]). It is beyond dispute that a court is not empowered to decide a moot question or matter. The Court now turns to the issues at hand.
I. Defendant's Demand for a Bill of Particulars
Initially, that branch of defendant's motion under CPL 200.95 to compel the People to respond to his demand for a bill of particulars has, in effect, been rendered moot. "A bill of particulars serves to clarify the pleading; it is not a discovery device" (People v Davis, 41 N.Y.2d 678, 679-680 [1977]).
"[W]here an indictment adequately apprises a defendant of the charges against him or her with sufficient specificity as to enable the defendant to develop and mount a defense, no bill of particulars is required" (People v Perillo, 144 A.D.3d 1399, 1403 [3d Dept 2016], lvs denied 29 N.Y.3d 948, 951 [2017] [internal quotation marks, brackets, and citation omitted]; see CPL 200.95 [1] [a]).
Here, defense counsel filed a timely demand for a bill of particulars on April 26, 2023, which reflects it was served upon the People around that time. The purpose of the bill of particulars is to more specifically disclose the crimes charged in the indictment and to amplify or clarify certain things in the accusatory instrument (see generally People v Zurita, 64 A.D.3d 800, 801 [2d Dept 2009], lv denied 13 N.Y.3d 840 [2009]).
The People provide their response to defendant's demand for a bill of particulars on pages two to three of their response papers. Such appears to comport with CPL 200.95 (1) (a) by, among other things, "specifying... items of factual information which are not recited in the indictment[,] and which pertain to the offense[s] charged." For example, the People represent that they intend to prove that defendant acted as the principal relative to the indictment (see People v Bronx Auto Venture Corp., 35 A.D.3d 276, 277 [1st Dept 2006], lvs denied 8 N.Y.3d 878, 879 [2007]). This branch of defendant's motion is thus rendered moot. Hence, the Court need not address it.
The Court, at this time, takes no view as to whether the bill of particulars, as set forth in the People's response papers, is adequate (cf. People v Culver, 192 A.D.2d 10, 15 [3d Dept 1993], lv denied 82 N.Y.2d 716 [1993]; People v Byrnes, 126 A.D.2d 735, 736 [2d Dept 1987]).
II. Defendant's Demand to Compel the People to File a Supplemental Certificate of Compliance
Next, to the extent defendant urges the People to file a supplemental certificate of compliance based on certain discovery that was turned over later, they have annexed one as a part of their response papers (dated November 17, 2023). The People are reminded of their continuing duty to disclose and file supplemental certificates of compliance as may be necessary (see CPL 245.60). Accordingly, this branch of defendant's motion is also deemed moot.
The record reflects that the People filed their certificate of compliance on August 1, 2023.
III. Defendant's Application Seeking Leave to File Additional Motions
Turning now to defendant's application seeking leave to file additional motions, this was already decided in the Court's omnibus motion. Defendant asserts that he may need to file more motions should new facts and evidence come to light during the exchange or furnishing of additional discovery. The People do not squarely address this branch of his motion in their response papers.
In any event, the Court has previously addressed this very issue in its omnibus decision and order when defendant made a virtually identical application. Counsel are respectfully referred to the discussion in Section "VI" therein, where the Court made plain that it has the discretion to entertain and dispose of a future motion on the merits "in the interest of justice[] and for good cause" (CPL 255.20 [3]; see People v Hughes, 22 N.Y.3d 44, 49 [2013]; People v Davydov, 144 A.D.3d 1170, 1172 [2d Dept 2016]).
The foregoing decision in this respect remains law of the case since it has not been altered. We need not reopen what has already been decided in a prior decision issued not too long ago (see People v Maslowski, 187 A.D.3d 1211, 1213 [2d Dept 2020], lvs denied 36 N.Y.3d [2021], 37 N.Y.3d 973 [2021]; People v Dollison, 76 Misc.3d 132 [A], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022], lv denied 39 N.Y.3d 962 [2022]).
IV. Defendant's Motion for a Purported CPL 30.30 (5) Hearing
Next, defendant requests for the Court to conduct a hearing pursuant to CPL 30.30 (5). He predicates this request based upon an assertion that certain outstanding discovery purportedly owed by the prosecution warrants an inquiry to determine whether the People have made good faith efforts to determine the existence of requested information that defendant should be provided. According to defendant, if it is determined at the hearing that the People have not, then he requests an order compelling the People to comply with certain discovery requests.
The People oppose this branch of defendant's motion by maintaining that they have complied, in full, with their discovery requirements in a timely fashion by, among other things, furnishing the "entirety of the case file" after DNA testing - including providing to defense counsel the raw data via a flash drive due to its storage size, as well as copies of email correspondence exchanged with the FIC concerning their position on supplying the standard operating procedures used by the lab in conducting the DNA paternity testing. In doing so, the People espouse that they engaged in good faith efforts to obtain the requested discovery and when they did, they quickly provided it to the defense in a convenient manner.
Contrary to the beliefs in the motion papers, the Court does not have to conduct a full-fledged hearing under CPL 30.30 (5). It is, rather, a brief judicial inquiry to assess the validity of the People's certificate of compliance where the Court asks about its accuracy, whether it was filed in good faith, and whether the People can confirm, on the record, that they are actually ready to proceed to trial (see People v Rosario, 70 Misc.3d 753, 759 [Co Ct, Albany County 2020]; see also CPL 30.30 [5]; 245.20 [1]; 245.50).
A hearing in the usual sense entails evidence with testimony and witnesses.
In reality, "[t]here are... many other aspects to the inquiry into actual readiness... beyond discovery compliance, including the availability of trial witnesses, expert witnesses, and any outstanding subpoenaed materials and trial exhibits" (People v Lewis, 72 Misc.3d at 696 [internal quotation marks and citation omitted]; see People v Sibblies, 22 N.Y.3d 1174 [2014]).
The applicable statute is unambiguous. CPL 30.30 (5) provides that "[w]henever... a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness" (emphasis added). "If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid" (id.).
An inquiry is not the same thing as a hearing. The language is clear, and no further interpretation is required. A formal, full-blown hearing is unnecessary because the plain text of this statute is straightforward (see People v Ballman, 15 N.Y.3d 68, 72 [2010] ["the text itself is generally the best evidence of legislative intent"]). We, therefore, need not "resort to other means of interpretation" (McKinney's Cons Laws of NY, Book 1, Statutes § 92, Comment).
As for the merits, "[t]he People's statement of readiness is presumed to be correct, 'in the absence of proof that the readiness statement did not accurately reflect the People's position'" (People v McCarthy, 146 A.D.3d 983, 984 [2d Dept 2017], lv denied 29 N.Y.3d 1034 [2017], quoting People v Carter, 91 N.Y.2d 795, 799 [1998]). CPL 30.30 (5) "expressly states that any statement of readiness 'must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements' of CPL 245.20, and that the defense 'shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met" (People v Lewis, 72 Misc.3d 686, 688-689 [Crim Ct, Kings County 2021], quoting CPL 30.30 [5]).
Said differently, "[t]o be deemed actually ready for trial, the People's readiness declaration must be accompanied or preceded by the filing of a certificate of good faith compliance with the disclosure requirements of CPL 245.20, and the presiding court must, after an on-the-record inquiry, be satisfied of the People's actual readiness" (People v McCarty, ___ A.D.3d ___, ___ 2023 NY Slip Op 06173, *2 [3d Dept 2023] [emphasis added]). "The People have an ongoing duty to expeditiously disclose any CPL 245.20 materials that were previously unknown or not in the People's possession during the automatic disclosure period, and a valid certificate of compliance and readiness declaration will not be rendered illusory by subsequent diligent disclosures made in good faith" (id.).
Further, CPL 245.50 establishes that a certificate of compliance is proper where its filing is "in good faith and reasonable under the circumstances." While defendant is free to contest the validity of the People's certificates of compliance on the record, an off-calendar announcement of readiness made by the People can be made in good faith and reflect an actual present state of readiness (see People v Brown, 28 N.Y.3d 392, 406 [2016] ["the defendant bears the ultimate burden of demonstrating that a statement (of readiness) is illusory"]; People v Lewis, 72 Misc.3d 686, 688-689 [Crim Ct, Kings County 2021]).
Based on the motion papers and the circumstances presented, the Court finds that the People's statement of readiness is, for now, presumed to be valid in view of their representations. With that said, defendant is not precluded from making an oral application in this respect. And even if he does not, the Court, on its own accord, can conduct the appropriate judicial inquiry in ascertaining whether the People are actually ready for trial (see CPL 30.30 [5]; 245.50 [3]; People v McCarty, 2023 NY Slip Op 06173 at *1; People v Guzman, 75 Misc.3d 132 [A], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]).
So long as the People made diligent, good faith efforts to ascertain the existence of discoverable materials prior to filing the August 2023 certificate of compliance and the November 2023 supplemental certificate of compliance, the additional disclosures would be reasonable under the circumstances. It was expected that there would likely be additional discovery provided by the People given the collection of defendant's buccal swab and the anticipated test results of the DNA paternity testing. Moreover, defendant does not claim that he was prejudiced by the belated disclosures (see CPL 245.20 [2]; 245.50 [1-a]; see also CPL 245.80; People v McCarty, 2023 NY Slip Op 06173 at *2-3).
Where, as here, the People have demonstrated due diligence and a good faith effort to discharge their discovery obligations - although items could remain unavailable - the Court can still deem the certificate(s) of compliance to be valid and the People ready for trial (see People v Diaz, 77 Misc.3d 727, 733 [Crim Ct, Bronx County 2022]). In view of this conclusion, the Court will not strike the People's supplemental certificate of compliance as invalid or illusory. Lastly, the Court mentions that there is no specific timeframe to conduct the inquiry under CPL 30.30 (5).
V. Defendant's Request for Purported Brady Material
Next, defendant surmises that the People are in possession of outstanding Brady material, consisting of the victim's U-Visa application based on certain discoverable material allegedly revealing that the victim has "immigration issues." Based upon this information and belief, defense counsel posits that this constitutes impeachment information relative to the victim's credibility which must be disclosed to the defense under Brady, its progeny, and People v Flores (217 A.D.3d 29 [1st Dept 2023]).
By way of background, the Violence Against Women Act of 2000 (VAWA 2000) created the U-Visa application to protect individuals who are the victims of domestic violence, sexual assault, and enslavement prostitution and who are likely to be helpful to law enforcement in prosecuting such criminal activity. "In 2007, regulations were created providing for a means for these victims to apply for a U-visa under 8 CFR § 214.14," which "specifies the procedures for a victim to obtain 'U' status" (Matter of Rosales, 40 Misc.3d 1216 [A], *1 [Fam Ct, Queens County 2013]).
A U-Visa is "an immigration benefit available to certain victims of crime" (Catholic Charities CYO v Napolitano, 368 Fed.Appx 750, 752 [9th Cir 2010]). It is a special type of visa that "can be granted to victims of certain listed crimes who later help United States law enforcement officials investigate or prosecute those crimes" (Linares v Sheriff's Office of Broward County, 588 Fed.Appx 363, 363 [5th Cir 2014]; see Torres-Tristan v Holder, 656 F.3d 653, 656 [7th Cir 2011]). The United States Citizenship and Immigration Services (USCIS) has sole jurisdiction over U-Visa applications (see 8 CFR § 214.14 [c] [1]).
To apply for a U-Visa, an applicant must first acquire a certification "from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State or local authority investigating criminal activity" (8 USC § 1184 [p] [1]; see 8 USC § 1101 [a] [15] [U] [iii]; Matter of Patricia C., 54 Misc.3d 1202 [A], *2 [Fam Ct, Queens County 2016]). The determination or decision to certify a U-visa application is entirely discretionary under 8 USC § 1184 (p) (1) and is not subject to judicial review (see Matter of Patricia C., 54 Misc.3d 1202 [A], *2 [Fam Ct, Queens County 2016]; see Trevino v Benton Cnty, Ark., 578 Fed.Appx 626, 627 [8th Cir 2014]; Ordonez Orosco v Napolitano, 598 F.3d 222, 226 [5th Cir 2010]).
In Flores, the First Department found that there was a Brady violation based on the People's failure to disclose U-Visa documentation concerning the complainant (see People v Flores, 217 A.D.3d at 42-46). In so finding, the appellate court determined that the U-Visa materials were critical impeachment evidence that should have been turned over by the prosecution because it could have implicated benefits conferred upon a witness by a prosecutor and, perhaps, tended to undermine the complainant's credibility (see id.). The First Department further held in Flores that the suppressed U-Visa evidence would have raised enough reasonable doubt in the minds of the jurors to potentially affect the outcome of the trial and the jury's verdict (see id. at 43).
In response to defendant's assertion about potential U-Visa materials concerning the victim, the prosecutor represents that the District Attorney's Office did not engage in a U-Visa application with the victim. The prosecutor submits that no such Brady material exists regarding the victim based upon a review of the documents and conversations with members of her Office.
Crediting the representations of the prosecutor that no U-Visa documentation exists concerning the victim, the People cannot be forced to turn over something that does not exist. As the People are undoubtedly aware, suppressing any such favorable evidence from the defense that provided the victim a motive would, of course, be egregious violations of due process and defendant's constitutional rights under Brady and its progeny. The Court hopes for full abidance with mandatory discovery obligations and Brady requirements in accordance with the bedrock principles of due process that are embodied in our Constitution.
VI. Defendant's Motion to Suppress the DNA Paternity Test and Results or, Alternatively, to Hold a Frye Hearing
A. Motion to Suppress the DNA Paternity Test and Results
Initially, defendant moves to suppress all evidence concerning the DNA paternity test conducted by the FIC and its results. He claims that because the defense has not been provided the FIC's standard operating procedures or protocols that were used during the laboratory testing, the scientific reliability of the results is unknown. His argument continues that the prosecution ought to be precluded from presenting such potential evidence at trial. The Court finds defendant's suppression claim regarding the DNA paternity test and results to be entirely without merit.
In this case, defendant's DNA was developed from a buccal saliva sample taken pursuant to an intervening court order. Under the particular circumstances of this case, the DNA paternity test results are relevant since they tend to prove the existence or nonexistence of a material fact directly at issue in this case - whether defendant is the biological father of the minor. Truth should be central to justice. And sometimes, trying to discover truth necessitates a searching inquiry.
While the Court recognizes that a potential defense expert may have issues about the DNA paternity testing, such relates to issues of foundation and weight of the evidence at trial, not to its general admissibility (see People v Hamilton, 255 A.D.2d 693, 693-695 [3d Dept 1998], lv denied 92 N.Y.2d 1032 [1998]; People v King, 232 A.D.2d 111, 114-118 [2d Dept 1997], lv denied 91 N.Y.2d 875 [1997]; People v Campos, 74 Misc.3d 1132, 1133-1134 [Co Ct, Orange County 2022]). That branch of motion to suppress evidence relative to the DNA paternity tests and results is thus denied.
B. Defendant's Motion for a Frye Hearing
The Court also denies that branch of defendant's motion which alternatively requests a Frye hearing to determine the admissibility of evidence obtained through the polymerase chain reaction (PCR) method of DNA testing that was used by the FIC in determining paternity. Defendant makes no legitimate argument as to why one is needed in this case (see Frye v United States, 293 F 1013 [DC Cir 1923]).
"The well-known Frye test applied to the admissibility of novel scientific evidence is whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. General acceptance by the relevant scientific community, however, does not require that the procedure be unanimously indorsed" (People v Wakefield, 38 N.Y.3d 367, 380 [2022], cert denied 143 S.Ct. 451 [2022] [internal quotation marks and citations omitted] [emphasis added]).
Defendant argues that a Frye hearing is warranted because the FIC follows unknown protocols. He posits that it is needed here to conclusively determine the trustworthiness of the DNA paternity test results because the scientific reliability of the test results are in question, and because the People have failed to establish the general acceptance of DNA evidence within the scientific community. Defendant's arguments in this respect are misinformed and inaccurate.
First, DNA evidence is widespread in federal and state criminal cases throughout the United States because it is scientifically reliable and often strong and indisputable proof. Secondly, the PCR amplification method which was used by the FIC here is well known and has been generally accepted in the scientific community for a long time. PCR allows for the amplification or chemical copying of DNA samples. Where the methodology employed is deemed reliable, any challenges to the particular procedures and instrumentalities used in applying the PCR method go primarily to the weight of the DNA evidence and not to admissibility. Indeed, an opponent can challenge the admissibility of DNA evidence by demonstrating that its reliability is undermined by procedural errors such as chain of custody, mishandling of samples, and so on.
Third, the purpose of a Frye hearing is narrowly confined to admissibility and not a proverbial battle of the experts regarding the legitimacy and weight of the evidence. "The singular purpose of a Frye hearing is to ascertain the reliability of 'novel scientific evidence' by determining whether the methods used to generate such evidence will, when properly performed, produce 'results accepted as reliable within the scientific community generally'" (People v Wilson, 192 A.D.3d 1379, 1380 [3d Dept 2021], quoting People v Wesley, 83 N.Y.2d 417, 422 [1994]).
Here, the lab report from the FIC indisputably reflects that the PCR amplification method was used for DNA paternity testing. There is abundant confirmation that this method has been found to be reliable in New York, as well as other jurisdictions (see State v Belken, 633 N.W.2d 786, 798 [Iowa Sup Ct 2001] [noting that the PCR method has emerged as a predominant method of DNA typing and is accepted in both forensic and non-forensic settings]; State v Pappas, 776 A.2d 1091, 1108 [Conn Sup Ct 2001] [holding that the PCR amplification method is generally accepted and scientifically valid]). Usage of the PCR amplification method is long-standing.
Well-established precedent in this State, dating back to almost three decades, confirms that "[t]he reliability of the PCR method has gained general acceptance in the scientific community" (People v Qi Zhong Lin, 267 A.D.2d 256, 257 [2d Dept 1999], lvs denied 94 N.Y.2d 951 [2000], 1 N.Y.3d [2004]; see People v John, 27 N.Y.3d 294, 299 [2016]; People v Fontanez, 278 A.D.2d 933, 934 [4th Dept 2000], lv denied 96 N.Y.2d 862 [2001]; People v Hamilton, 255 A.D.2d at 693-695; People v Palumbo, 162 Misc.2d 650, 655-657 [Sup Ct, Kings County 1994] [noting that the PCR method was also accepted in out-of-state jurisdictions]).
As the People correctly contend, there is no need for a Frye hearing to test the reliability of the PCR amplification method which uses statistical methods to "estimate how many people in the population share the DNA profile developed by the PCR method" (People v Hall, 266 A.D.2d 160, 161 [1st Dept 1999], lvs denied 94 N.Y.2d 901, 948 [2000]). Any such objections would go to the weight of the evidence, not its admissibility. Such a function must be left for the jury's resolution (see People v Wesley, 83 N.Y.2d at 425-529; People v Hall, 266 A.D.2d at 160-161).
To belabor a point already made, the PCR method of DNA testing is still generally accepted by the scientific community today. Critically," Frye requires only general, not unanimous, acceptance by the scientific community" (People v Morales, 227 A.D.2d 648, 650 [2d Dept 1996], lvs denied 89 N.Y.2d 926 [1996], 17 N.Y.3d 819 [2011]).
This Court sees no reason to revisit well settled scientific principles. Therefore, a Frye hearing is not warranted. Holding one here would fly in the face of settled law and would be a departure from the doctrine of stare decisis, "which requires that cases similar to each other be decided the same" (People v Bing, 76 N.Y.2d 331, 344 [1990]; see People v Campos, 74 Misc.3d at 1133-1134). Accordingly, that branch of defendant's motion requesting a Frye hearing relative to the DNA paternity test and results is denied.
VII. Defendant's Discovery Demand for Certain Materials from the State Police Forensic Investigation Center
Next, defendant moves to compel the People to furnish all electronic data from the FIC's testing laboratory, and to supply the standard operating procedures or protocols from the FIC regarding the procedures used by the lab in performing the DNA paternity testing.
A. Electronic Raw Data Used in DNA Testing
Initially, defense counsel concedes in the moving papers that the defense was provided a flash drive by the prosecutor, on or about October 11, 2023, containing the electronic raw data from the lab. The People have provided the raw data in striving to meet their discovery obligations (see generally People v Lustig, 68 Misc.3d 234, 244-246 [Sup Ct, Queens County 2020]). This branch of defendant's motion is thus denied as moot.
B. The Laboratory Standard Operating Procedures and Protocols
Next, defendant relies on CPL 245.20 (1) (j) in claiming that because the DNA testing and analysis was conducted at the FIC at the request of the District Attorney's Office, the standard operating procedures and protocols are subject to automatic discovery and are deemed to be within the People's possession. He expands this argument by theorizing that the FIC is an entity within the New York State Police and is/was under the prosecution's direction and control in conducting the testing - thereby rendering it a law enforcement agency that is engaged in law enforcement activity.
The People counter that the FIC's standard operating procedures and protocols fall outside the scope of mandatory discovery under CPL 245.20. They claim that the FIC is not a law enforcement agency under the prosecution's direction and control. The Court agrees with the People in this respect.
The issues distill to two inquiries here: (1) whether the FIC is under the direction or control of the Putnam County District's Attorney's Office; and (2) whether the FIC's standard operating procedures/protocols are deemed to be in the constructive possession of the People. The Court answers both questions in the negative for the rationale that follows.
Preliminarily, the FIC, though apparently under the auspices and umbrella of the State Police, is an independent laboratory that assists various law enforcement agencies in this state. According to the New York State Police website, the "Crime Laboratory System (CLS) provides statewide support to all state criminal justice agencies with analytical and investigative capabilities and expert testimony related to the investigation and resolution of criminal matters" (NY State Police, Crime Laboratory System [CLS], https://troopers.ny.gov/crime-laboratory-system-cls-0/ [last accessed Dec. 12, 2023]). The FIC, part of the CLS, is the headquarters of the CLS and is located in the City of Albany, where it "provides a full range of forensic science services" (NY State Police, Crime Laboratory System [CLS], Overview, https://troopers.ny.gov/crime-laboratory-system-cls/ [last accessed Dec. 12, 2023]).
Opening in 1996, the website states that the FIC facility was built to serve "the entire law enforcement community in New York State with full forensic services" (New York State Police Forensic Investigation Center, https://troopers.ny.gov/new-york-state-police-forensic-investigation-center/ [last accessed Dec. 12, 2023]).
Evidently, district attorney offices, law enforcement agencies, and even courts can contact one of the four laboratories located within New York State, including the FIC, who offer, among other things, a "full range" of laboratory services, investigative assistance, and personnel such as specialists who assist the requestor with criminal investigations and evaluation of evidence (id.). Forensic scientists and consultants working at one of the laboratories, such as the FIC, conduct various types of testing and analysis, often prepare written reports containing the results of DNA tests, and even may testify as experts in criminal proceedings (see e.g. People v Wakefield, 38 N.Y.3d at 371; People v Abraham, 22 N.Y.3d 140, 143 [2013]; People v Smith, 201 A.D.3d 1126, 1130 [3d Dept 2022], lvs denied 38 N.Y.3d 1035, 1036 [2022]; Matter of Hoovler v De Rosa, 143 A.D.3d 897, 898 [2d Dept 2016]; People v Henderson, 142 A.D.3d 1104, 1105 [2d Dept 2016], lvs denied 28 N.Y.3d 1146 [2017], 35 N.Y.3d 1066 [2020]; People v Afrika, 13 A.D.3d 1218, 1219-1220 [4th Dept 2004], lvs denied 4 N.Y.3d 827 [2005], 7 N.Y.3d 923 [2006]).
Defendant, reasonably, places heavy reliance on CPL 245.20 (1) (j) - which states that the People must disclose "all reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically[,]... or scientific tests or experiments or comparisons, relating to the criminal action or proceeding... not limited to, laboratory information management system records relating to such materials, any preliminary or final findings of non-conformance with accreditation, industry or governmental standards or laboratory protocols, and any conflicting analysis or results by laboratory personnel regardless of the laboratory's final analysis or results" (emphasis added).
The People stress that defense counsel has misunderstood the interpretation of CPL 245.20 (1) (j), inasmuch as that statute does not make generalized laboratory protocols a part of automatic discovery. As maintained by the People, the relevant section applies to nonconforming events or how such nonconformance relates to accepted standards.
The Court further references other statutory provisions that are pertinent to the matters at hand. CPL 245.20 (1) provides that the People must disclose "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." Further relating to the foregoing subdivision, CPL 245.20 (2) provides, in relevant part, that "[f]or purposes of [CPL 245.20 (1)], all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution"; and that "[t]he prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge." Defendant's strict reading and construction of CPL 245.20 (1) (j) is erroneous and unfounded.
Beginning with the first query, the Court finds that the FIC is not under the direction or control of the District's Attorney's Office. While the FIC is an arm of the State Police, it appears to be independent and not directly part of a law enforcement agency. The FIC provides assistance and services to" all state criminal justice agencies" throughout New York State (NY State Police, Crime Laboratory System [CLS], https://troopers.ny.gov/crime-laboratory-system-cls-0/ [last accessed Dec. 12, 2023]). The website makes apparent that the CLS has various sections.
Notably, FIC conducts "forensic testing for... over 500 law enforcement agencies that utilize its forensic services" (NY State Police, Forensic Investigation Center, BIOLOGICAL SCIENCE CASEWORK EVIDENCE SUBMISSION & TESTING INFORMATION at 1, https://troopers.ny.gov/system/files/documents/2022/10/biologicalsciencecasework_sub-and-test-info.pdf/ [last accessed Dec. 12, 2023]). Its publicly accessible website explains that under the CLS, there is a "Biological Science Casework Section" (hereinafter referred to as "the BSCS"), which has established specific practices for submitting evidence and DNA testing (see id. at 1).
Relevant here, the BSCS "offers criminal paternity testing services to law enforcement agencies" by performing DNA analysis through, for example, the collection of buccal swabs from the biological mother, the alleged father, and the subject child (id. at 5), which is exactly what was done in this case. The buccal swabs must be properly stored. The FIC has to maintain records showing chain of custody "like items from any other criminal investigation (id.). The BSCS also includes other sections, including the "DNA Casework Section," and the "New York State DNA Databank" (NY State Police, Biological Sciences, https://troopers.ny.gov/crime-laboratory-system-sections/ [last accessed Dec. 12, 2023]).
Analogous situations arose in a few trial court cases regarding the role of other agencies. In Lustig, which is cited and discussed to some extent in the motion papers, the Supreme Court, Queens County held that the Office of the Chief Medical Examiner (OCME) is an "independent, non-law enforcement agency that is not within the direction or control" of the District Attorneys' offices and, additionally, pointed out the online availability of OCME's lab procedures and protocols for the defense's access (People v Lustig, 68 Misc.3d at 245-246).
Defense counsel here distinguishes Lustig by contending that CLS is an entity of the State Police, so, the prosecution is deemed to be in possession of the protocols and procedures. Further, defense counsel asserts that it was essentially a moot issue for the Lustig court to decide a similar question because OCME's protocols and procedures were already available online - where, in contrast here, they are not (compare id.). The defense's beliefs are misguided.
The undersigned agrees with the holding and rationale set forth in Lustig by Supreme Court (Joseph A. Zayas, J.). This Court additionally references People v Taylor (80 Misc.3d 184 [Utica City Ct 2023]), where the Court determined that the Division of Criminal Justice Services (DCJS) is not a law enforcement agency under CPL 245.20 (2) (see id. at 199-203). In so doing, the Taylor court agreed with the People's position that the functions being performed by DCJS in relation to that case were not for law enforcement related activities and also not applicable to the same discovery statutes at play (see id. at 200-201). Akin to the case at hand, the court in Taylor explained that DCJS's "support extends beyond police agencies to other branches of government along with providing a host of services"; and adding that "[t]he broad range of services which DCJS provides to private and public entities further supports their overall mission[,] which is other than a law enforcement agency" (id. at 201).
The Court also refers to People v McQueen (80 Misc.3d 225 [Crim Ct, Kings County 2023]) in further distinguishing the facts of this case. There, the court required the prosecution to disclose to defendant documentation regarding the standard operating procedures and lab protocols of the New York Police Department (NYPD) laboratory because the gas chromatography-mass spectrometry (GS/MC) tests were undisputedly performed within an NYPD laboratory (see id. at 233, 236). The defendant in McQueen was charged with criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03 (see id. at 227). The arresting law enforcement agency there was the NYPD; and the defense in that case sought police disciplinary records for potential impeachment material concerning two NYPD officers and a completed activity log for another NYPD officer (see id. at 229). The McQueen court ordered disclosure of the NYPD lab's standard operating procedures, in large part, because the King's County District Attorney's Office failed in its opposition papers to specifically address "whether there [were] findings of nonconformance with accreditation or industry standard laboratory procedures for the NYPD" - adding a caveat that the People would be required to explain their efforts in ascertaining the existence of the NYPD laboratory's procedures/protocols in the event that they were unable to disclose such information (id. at 236). In contrast from McQueen, defendant does not claim that the FIC's final findings nonconform with accreditation; nor can he suggest that the District Attorney's Office has their own industry or governmental standards or lab protocols, unlike the NYPD laboratory in McQueen (compare id.). The facts there were different.
Moreover, in enacting the reformed discovery laws, the State Legislature "notably omitted laboratories and... [also] medical examiner's offices from this provision of CPL 245.20 (2)" (People v Rozenel, 70 Misc.3d 1214 [A], *3-4 [Nassau Dist Ct 2021]). The duties of the CLS and the FIC are inherently independent of and not subject to the control of the Putnam County District Attorney's Office (see People v Washington, 86 N.Y.2d 189, 192 [1995]). The CLS and the FIC are not law enforcement entities. The FIC is a scientific laboratory that "work[s] independently from the District Attorney" (People v Brown, 13 N.Y.3d 332, 340 [2009]; see NY State Police, Crime Laboratory System [CLS], Overview, https://troopers.ny.gov/crime-laboratory-system-cls/ [last accessed Dec. 12, 2023]).
Examining the quoted language above from CPL 245.20 (2), the State Legislature considered that a law enforcement agency is different from a forensic science laboratory performing testing based on the following statutory provision: "[i]f the prosecution submitted one or more items for testing to, or received results from, a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materials under this paragraph to be made available for disclosure" (CPL 245.20 [1] [j]). The District Attorney's Office and the FIC have fundamentally different roles.
For the foregoing reasons, defendant's argument that the FIC or CLS are acting at the direction and control of the Putnam County District Attorney's Office, while creative, is simply incorrect. The mere fact that the FIC has conducted DNA paternity testing and rendered a written report regarding the testing and results of defendant's buccal saliva swab does not mean that the FIC is performing a prosecutorial function on behalf of the District's Attorney's Office (see People v Smith, 206 A.D.2d 102, 110-112 [1st Dept 1994], affd 85 N.Y.2d 1019 [1995]; People v Rozenel, 70 Misc.3d 1214 [A] at *4).
The sole purpose of the FIC's DNA testing is "to give an impartial scientific determination" in connection with establishing the minor's paternity and "not to determine whether an individual is guilty, or not guilty, of a crime" (People v Washington, 196 A.D.2d 346, at 350). Indeed, the FIC's limited role in this case is not for prosecuting purposes, but "is merely an incident of its duty to render impartial, scientific determinations with respect to [establishing the minor's paternity,] and related matters of forensic science" (People v Smith, 206 A.D.2d at 111).
In light of reaching this conclusion, the Court can further conclude that the purported standard operating procedures that are supposedly in the possession of the FIC or the CLS are not in the constructive possession of the People (see People v Smith, 206 A.D.2d 102 at 112; People v Washington, 196 A.D.2d 346, 350-351 [2d Dept 1994], affd 86 N.Y.2d 189 [1995]). This is, in fact, further substantiated by "Exhibit H" of defendant's motion papers, where an assistant director at the FIC unequivocally states in an email correspondence to the prosecutor that they do not provide policies or procedures relative to discovery either to the defense or directly to the District Attorney's Office made at the request of the defense. Further, the Court finds creditworthy the prosecutor's explanation that the People tried, without success, to obtain what the defense is asking for.
This email reflects it was sent on or about October 4, 2023.
Therefore, the Court holds that the People are not required to turn over the FIC's lab procedures or protocols to defense counsel as a part of automatic discovery (see People v Lustig, 68 Misc.3d at 245-246; People v Taylor, 80 Misc.3d at 201; People v Rozenel, 70 Misc.3d 1214 [A] at *3-4; see also CPL 245.20 [1] [j], [m]). This holding, however, does not entirely spell doom for defendant.
To the extent he argues in reply that the defense is deprived of an opportunity to have an independent medical expert, on behalf of defendant, to review the FIC's procedures or protocols in assessing their validity or propriety, the defense is free to avail itself of issuing a subpoena duces tecum under CPL 245.20 (1) (j). That is, indeed, a procedural mechanism made available in Criminal Procedure Law article 245 (see People v Lustig, 68 Misc.3d at 245-246; People v Rozenel, 70 Misc.3d 1214 [A] at *4; see also CPL 245.20 [2]).
The Court additionally notes CPL 245.20 (2), which states that "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" ([emphasis added]; see generally People v Winston, 80 Misc.3d 1211[A], *1-6 [Crim Ct, Bronx County 2023]; People v McQueen, 80 Misc.3d at 231; People v Rozenel, 70 Misc.3d 1214 [A] at *2). In light of these holdings, the majority of defendant's motion is denied based on all of the branches that are addressed in this Decision.
To the extent not specifically mentioned herein, the parties' remaining contentions have been examined and are either without merit or have been rendered academic based on this decision. Any other relief requested that is not squarely addressed herein is denied. Accordingly, it is hereby:
Ordered that those branches of the motion of defendant DARWIN S. GONZALEZ-MENDOZA (Mot. Seq. No. 4), for suppression of the DNA paternity test and results or, alternatively, conducting a Frye hearing are DENIED; and it is further
Ordered that that branch of defendant's motion directing the People to turn over the standard operating procedures/protocols of the New York State Police Forensic Investigation Center or the Crime Laboratory System is DENIED; and it is further
Ordered that the remaining branches of defendant's motion are denied as moot.
This constitutes the decision, order, and opinion of the Court.