Opinion
Indictment No. 05146/12
06-12-2014
THE PEOPLE OF THE STATE OF NEW YORK v. LAWRENCE JONES Defendant
Unpublished Opinion
Amended DNA Swab Decision and Discovery Order
DECISION AND ORDER
MARTIN P. MURPHY, A.J. S. C
The defendant is charged inter alia murder in the second degree and criminal possession of a weapon in the second degree.
It is alleged that on or about May 25, 2012 in the vicinity of 847 Hancock Street in Kings County, the defendant shot ____ in the back. ____ later died from his wounds. Numerous witnesses at the time reported hearing at least five shots fired at the time.
A deformed bullet was recovered at the scene and vouchered.
Defendant was arrested at his home at 77 Schaeffer Street in Kings County on June 15, 2012. A black revolver, believed to belong to the defendant, was recovered at the time.
Microscopic results of the bullet and firing tests of the revolver concluded that the recovered, deformed bullet had been fired from the revolver recovered at defendant's home.
Defendant was later indicted as previously indicated.
The weapon was vouchered and later submitted to the Office of the Chief Medical Examiner (O.C.M.E.) lab for testing. Swabs of the firearm were also obtained for possible DNA testing.
On September 14, 2012, the O.C. M. E. issued a report, indicating that swabs taken from the gun were tested and that the results are suitable for comparison. Specifically, the report in part indicated that:
Human DNA sufficient for PCR DNA testing was found on the following samples:
swab from "cylinder"
swab from "grip"
swab from "trigger and trigger guard"
swab from "safety"
swab from "muzzle"
It continued:
PCR DNA testing was done and the results were suitable for comparison. The report also indicated that a mixture of DNA from at least three people was found on the grip of the gun and a mixture of DNA from at least two people was found on the swabs from the trigger, trigger guard and safety. Furthermore, the mixture of DNA on the grip contains a profile of at least one major contributor. The profile of the minor contributors on the grip, trigger and trigger guard could not be determined, but the results are also suitable for comparison.
Pursuant to CPL 240. 40 (2)(b) (v), the People now request an order permitting the taking of oral swab samples from the defendant by means of a buccal swab for DNA testing and comparison to the stains obtained from the weapon. The People believe that such comparison will establish the identity of the defendant as the possessor/owner of the weapon and further their investigation into the charged crimes.
The defendant has submitted an affirmation in opposition in which he contests the the sufficiency of the People's arguments in meeting their burden to establish that relevant, material evidence will be found. Defendant also contests that the People previously objected to a
Mapp, stating they did not intend to introduce any physical evidence. Defendant therefore requests that should a swab order be granted, this court order a Mapp hearing in this case. Finally, again should this court grant a swab order, defendant requests a protective order preventing the OCME from sharing the results with other agencies.
After a review of the People's motion papers, filed on July 8, 2013 and the defendant's affirmation in opposition, filed on August 2, 2013, the official court file, and all of the prior court proceedings, this court finds defendant's arguments to be unavailing and GRANTS the People's request for the taking of a buccal swab.
CPL 240.40 (2)(b) (v) provides:
Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor's information, information, or simplified information charging a misdemeanor is pending... (b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to:
(v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto.
In the Matter of Abe A., 56 N.Y.2d 288 [1982], the Court of Appeals held that a suspect in a murder investigation could be compelled to provide a blood sample provided the prosecutor established: (1) that there was probable cause to believe the suspect has committed the crime, (2) that there is a "clear indication" that relevant evidence will be found, and (3) that the method used to secure it is safe and reliable. The court continued:
"In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other."Also People v Cacciabaudo, 153 A.D.2d 856 [2nd Dept.,1989], People v Rohl, 148 A.D.2d 706 [2ndDept.,1989], Matter of Victor Valdes, 28 A.D.2d 781 [2nd Dept., 2006] .
In this case, the requirements of Abe A. have been met. As previously noted, the defendant was indicted by legally sufficient evidence to establish reasonable cause to believe defendant's commission of the charged crimes. In addition, this court has determined in a Decision and Order,issued earlier, that the grand jury proceeding was not defective and that there was legally sufficient evidence presented to sustain the indictment.
In addition, there is a clear indication that the evidence sought is relevant and material to the crimes with which defendant is charged. A swab of defendant's inner cheek would be minimally invasive and the method to be used is safe and reliable. Finally, this court finds that the defendant is charged with very serious crimes; that the evidence sought is important to the investigation and the minimal intrusiveness of obtaining it outweighs any concern for the defendant's constitutional right to be free from bodily intrusion.
It is therefore ORDERED, that for the purpose of taking the oral swab samples, defendant Lawrence Jones, NYSID #09510589-2, must be made available for New York City Court Officers, Detectives of the New York City Police Department and/or Detective Investigators from the Kings County District Attorney's Office, to take the oral swab samples, which representative will thereafter take custody of said oral swab samples. It is further:
ORDERED, that the Office of the Chief Medical Examiner is directed to compare the known DNA profile of Lawrence Jones strictly to the items of evidence submitted in association with Forensic Biology # 12-02624 and it is further:
ORDERED, that the Office of the Chief Medical Examiner is further directed to refrain from entering the DNA profile of Lawrence Jones into the OCME DNA Databank, unless there is a conviction in this case and it is further:
ORDERED, that the Office of the Chief Medical Examiner is further directed to refrain from entering the DNA profile of Lawrence Jones into any Stale-wide or Federal DNA database.
Finally, should the DNA comparison results indicate the presence of defendant's DNA on the recovered weapon, and should the People seek to admit the gun into evidence at trial, defendant is hereby GRANTED a pretrial Mapp hearing to determine the weapon's admissibility.
Defendant's Discovery Demand for Raw DNA Data
Numerous items of discovery, including those pertaining to the DNA testing conducted in this case, have been requested by the defendant and provided by the People.
The sole issue in that regard that remains to date unresolved is what defendant refers to as electronic raw data and what the People assert instead is known as raw data which they maintain is not readily available or exist in a form that is readily collectible; the People also argue that requiring OCME to collect it would be unduly and unreasonably burdensome and amount to the creation of material for the sole purpose of discovery.
This court agrees.
To begin, the People have previously provided the electropherograms, also termed electronic raw data, which are relied upon by the analyst to interpret DNA results. The electropherograms are contained within the OCME's case file and have been previously turned over to the defense. In addition, the People herein consent to also now provide the electropherograms of the controls, allelic ladder and size controls, should defendant which to have those items.
Raw data on the other hand is data which exists only on the OCME's network, is not stored on the OCME's LIMS or management system network as individual case information but rather is "batched" together with data from multiple cases and, as such, would have to be culled or edited via an extremely time-consuming and burdensome process.
CPL 240.20(1)© reads:
(1) Except to the extent provided by court order, upon a demand to produce by a defendant against whom an indictment, superior court information, prosecutor's information, information or simplified information charging a misdemeanor is pending, the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing, the following property:
© Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the People intend to introduce at trial...
"[T]he Legislature has prescribed a detailed discovery regimen in New York embodied in Article 240 of the Criminal Procedure Law" . People v Colavito, 87 N.Y.2d 423[1996]. "Items not enumerated in Article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated." Id. "CPL Article 240.20, which should be strictly construed, codifies the full breadth of criminal discovery, including disclosure of evidence guaranteed by the Constitution, required by fundamental fairness and mandated by legislative policy." People v Alvarez, 38 A.D.3d 930 [3rd Dept., 2007], Iv den 8 N.Y.3d 981 [2007].
In the instant case, the People have complied with the requirements and mandates of CPL Article 240. The raw data sought by defendant does not constitute either existing reports or existing documents. As such, the discovery requested would have to be created by sifting through large repositories of raw data, thereby consuming an inordinate amount of OCME's time and resources. As noted, eg., by the Third Department in Matter of Farrell v LaBuda, 2012 NY Slip Op 2545 [3rd Dept., 2012], the District Attorney "is not constitutionally or statutorily required to created discoverable evidence."
Here, such a request seems particularly unreasonable, given the fact that OCME analysts do not base their conclusion upon the raw data, but rather upon the reports generated therefrom, which have previously been provided to defendant. Moreover, as earlier indicated, the People do not intend to introduce the raw data as evidence at trial.
It must also be noted that OCME is not a law enforcement agency under the People's control. Accordingly, the raw data sought does not constitute Rosario material, required to be turned over by the People. People v Washington, 86 N.Y.2d 189 [ 1995]; also see People v Freycinet, 11 N.Y.3d 38 [2008].
Finally, defendant contends that the raw data is needed, since a defense expert may change the parameters of interpretation in order to detect genetic markers ignored by the OCME. In thus arguing, defendant references data that was interpreted using a threshold of under 75 Relative Florescent Units (RFU's), the threshold set by OCME's protocol. Such a threshold is utilized by the OCME analysts in order that they feel confident that the data they are analyzing can reliably be considered as true alleles and not be artifact, noise or stutter, all of which is not true DNA. That analytical threshold, 75 RFU's, is the minimum height requirement at and above which detected peaks can be reliably distinguished from background noise.
Therefore, based upon all of the foregoing, defendant s request for raw data is DENIED. However, defendant is to be provided with all the electropherograms of the controls, allelic ladder, size controls as well as any electronic raw data (reports), not previously provided.
The foregoing constitutes the decision and order of the court.