Summary
In People v Larkin, 72 Misc.3d 663 (Sup Ct, Kings County 2021), the court found that audit trail logs offer no additional information regarding the subject matter of a criminal case, which "militates against mandating the automatic disclosure" of such logs.
Summary of this case from People v. CumbeOpinion
774/2019
05-25-2021
The People of the State of New York v. Nila Larkin, Defendant.
Brooklyn Defender Services, Brooklyn (Hemangi S. Pai of counsel), for defendant. Eric Gonzalez, District Attorney, Brooklyn (Yvette L. Creightney of counsel), for plaintiff.
Brooklyn Defender Services, Brooklyn (Hemangi S. Pai of counsel), for defendant. Eric Gonzalez, District Attorney, Brooklyn (Yvette L. Creightney of counsel), for plaintiff. Matthew J. D'Emic, J.
The defendant moves for an order, pursuant to CPL § 245.20, directing the People to disclose the audit trails for the body camera footage relating to the incident for which the defendant is charged under the indictment. The People oppose the defendant's motion. Upon review of the parties' respective motion papers and the court file, the defendant's motion is denied.
On March 11, 2019, the defendant was arraigned on the captioned indictment, which charges her with assault in the second degree and other related offenses stemming from an incident that allegedly occurred on or about January 30, 2019. On February 28, 2020, the People served and filed a certificate of compliance pursuant to CPL § 245.50.
The People did not file a statement of readiness with their certificate of compliance; the People first asserted their readiness for trial on December 24, 2020.
On October 27, 2020, defense counsel sent ADA Creightney a letter detailing the purported deficiencies in the People's discovery, including the omission of the audit trails for the video footage captured by the body-worn cameras of Police Officers Mark Ozechowski and George Cristino and two other unidentified members of the NYPD. In an email dated January 15, 2021, ADA Creightney informed defense counsel that the People did not intend to disclose the requested materials. The defendant now moves to compel the People to produce the audit trails as part of their "automatic discovery."
In her affirmation, defense counsel states that audit trails for Axon's body-worn cameras are divided into three categories: "device audit trails," "evidence audit trails," and "user audit trails." The basis for defense counsel's conclusion is unclear, but the names of the categories represent distinctions without difference.
According to defense counsel, ADA Creightney replied that the audit trails were "n/a," which defense counsel interpreted to mean that they were not available. Both defense counsel and the defense's digital forensics expert describe how easily accessible the audit trails are for the prosecution/NYPD. The court notes that the People do not appear to dispute that they could obtain such information should they so desire; rather, ADA Creightney was seemingly stating that the audit trails were not applicable for purposes of CPL § 245.20.
CPL § 245.20 (1) (a — u), entitled "Automatic discovery," sets forth the People's discovery obligations in all criminal matters, which includes "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." For 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" (CPL § 245.20 [2]).
The prosecution is required to "perform its initial discovery obligations under subdivision one of [CPL § 245.20] as soon as practicable but not later than twenty calendar days after the defendant's arraignment on an indictment" if the defendant is in custody during the pendency of the criminal case (CPL § 245.10 [1] [a] [i]); otherwise, the People must satisfy the requirements of CPL § 245.20 "within thirty-five calendar days after the defendant's arraignment on the indictment" (CPL § 245.10 [1] [a] [ii]). However, the time period prescribed by the statute "may be stayed by up to an additional thirty calendar days without need for a motion" "when the discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution" (id.).
Once the People have, in good faith, complied with the mandates of CPL § 245.20, they are to file a certificate of compliance (CPL § 245.50). The certificate of compliance must state that "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL § 245.50 [1]).
If the prosecution discloses additional discovery subsequent to the filing of its certificate of compliance in accordance with CPL § 245.60, it must serve and file a supplemental certificate identifying the additional material and information provided (CPL § 245.50 [1]). However, "[n]o adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article" (CPL § 245.50 [1]).
Audit Trails for Police Body-Worn Camera Footage
Whether the defendant is entitled to disclosure of the "audit trail" for body camera footage is a matter of dispute between the parties. As a general matter, body-worn camera footage is discoverable pursuant to CPL § 245.20 (1) (g), which provides, in relevant part, that the prosecution shall disclose "[a]ll tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident." The statute does not specifically mention the terms "audit trails" or metadata. Consequently, under the plain language of CPL § 245.20 (1) (g), the People discharge their duty by furnishing the defendant with relevant body camera footage.
As the defendant observes, CPL § 245.20 does not set forth an exhaustive list of the materials to which a defendant is entitled; she maintains that audit trails are discoverable pursuant to the statutory catchall provision requiring the People to disclose all items and information in their possession, custody or control that relate to the subject matter of the case. At the trial level, there is a lack of consensus and the issue has yet to be considered by a court of controlling authority. However, several appellate courts have rendered decisions ordering disclosure of an audit trail in civil proceedings, which the court finds instructive here.
Discovery rules in civil proceedings embrace the same overarching principles reflected in the newly enacted criminal discovery statutes. The Court of Appeals explained, "[d]isclosure in civil actions is generally governed by CPLR 3101(a), which directs: '[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.' We have emphasized that '[t]he words, "material and necessary," are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason'[citations omitted] ." ( Forman v Henkin, 30 NY3d 656, 661 [2018] [emphasis supplied]).
Preliminarily, audit trails of body camera footage fall within the category of "system metadata," which "reflects automatically generated information about the creation or revision of a document . . . or the date and time of its creation or modification" (Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, 321 [4th Dept 2010] [internal quotation and citations omitted]). "System metadata is most relevant if a document's authenticity is at issue, or there are questions as to who received a document or when it was received" (id.).
Courts have also found that an audit trail/system metadata constitutes a "record," thereby rendering such information discoverable where the law specifically entitles the party seeking disclosure to obtain "records" pertaining to the subject matter of the audit trail (see Matter of Irwin, 72 AD3d at 322). In accordance with that line of reasoning, in People v Adams, a justice of the Queens County Supreme Court held that an LIMS audit trail contained in the OCME's LIMS system "would be considered a 'record' for purposes of the new statute and . . . must be provided to the defense" (People v Adams, 66 Misc 3d 918, 923-924 [Sup Ct, Queens County 2020], citing CPL § 245.20 [1] [j]). However, CPL § 245.20 (1) (g) does not require disclosure of records associated with electronic recordings.
In Vargas v Lee (170 AD3d 1073 [2d Dept 2019]), the plaintiffs brought a medical malpractice action against Wyckoff Heights Medical Center on behalf of a patient who underwent foot surgery at the hospital, alleging that Wyckoff's employees' failure to timely diagnose and treat medical complications following the surgery resulted in the amputation of the patient's leg. In reversing the motion court's decision denying the plaintiffs' motion to compel production of the audit trail of the patient's medical records, the Second Department observed that an "audit trail generally shows the sequence of events related to the use of a patient's electronic medical records; i.e., who accessed the records, when and where the records were accessed, and changes made to the records" (id. at 1076, citing Gilbert v Highland Hosp., 52 Misc 3d 555, 557 [Sup Ct, Monroe County 2016]). Notably, Wyckoff did not dispute the plaintiffs' contention that the audit trail contained "information pertaining to the medical care that it provided to the injured plaintiff in the wake of his foot surgery" (id. at 1077). The Appellate Division therefore concluded that the audit trail "would provide, or was reasonably likely to lead to, information bearing directly" on the patient's post-operative care (id. at 1077).
As explained by the court in Gilbert, "establishing who received what information and when" is important to a plaintiff's claim that a hospital was negligent in failing to properly diagnose its patient (Gilbert, 52 Misc 3d at 559 [internal quotation omitted]).
Conversely, the audit trail of body camera footage offers no additional information regarding the subject matter of the criminal case — a consideration that strongly militates against mandating the automatic disclosure thereof. Moreover, there is little reason to believe that the audit trail is necessary for authentication purposes; when and by whom the body camera footage was recorded is not in question and the video is time and date stamped. Therefore, absent a particularized showing that the audit trail is likely to contain information that is relevant to the crime(s) charged which cannot be ascertained from the footage itself, it is not discoverable.
The defendant claims that the audit trails should be deemed discoverable because they constitute "chain-of-custody records" and establish the authenticity of the video. As the name suggests, chain of custody records document the handling of evidence after it is taken into police custody. The audit trails sought by the defendant are created and maintained by Axon — a private company over which neither the NYPD nor the People have direction or control. Consequently, the audit trails cannot be deemed to fall within the purview of CPL § 245.20 under the theory that they are but one link in the chain of custody record.
In any event, historically, courts have rejected the notion that chain of custody is necessary to render tape recordings admissible. In People v McGee, the Court of Appeals observed that
"a chain of custody is employed when the evidence itself is not patently identifiable or is capable of being replaced or altered . . .Tape recordings made by a participant to a conversation do not fall within the category reserved for fungible evidence, such as drugs. The uniformity of these substances, making identification difficult, generally, justifies a requirement of tracing fungible goods through each hand with which it comes in contact. The inherent difficulty with fungible goods simply is not present when evidence of a conversation is sought to be introduced, for the conversation itself is unique and the participants are available to attest to its accuracy"(People v McGee, 49 NY2d 48, 59-60 [1979] [internal quotations and citations omitted], motion to amend remittitur denied, 49 NY2d 919 [1980], cert. denied, 446 U.S. 942 [1980]). The same principles apply in the context of videos recorded by police body-worn cameras.
To buttress her contention that audit trails are nonetheless necessary for purposes of authentication, the defendant submits the affidavit of William F. Stumme, who is a senior forensic examiner with Atlantic Data Forensics and has approximately 20 years of experience working "on digital forensics issues." Mr. Stumme details the wealth of critical information that audit trails afford an expert conducting a forensic examination of the evidence to which the audit trails relate, emphasizing the role audit trails play in the authentication and verification of electronic evidence. He further avers that he would consider it "essential" to receive the "additional chain of custody documentation and information provided in audit trails to provide a complete assessment to counsel." Although informative, Mr. Stumme's affirmation fails to demonstrate the defendant's entitlement to the relief requested, and this court does not find that the audit trails are necessary to authenticate the body-worn camera footage.
Similarly unavailing is the defendant's claim that the prosecution is obligated to produce the audit trails to prove that the video recording has not been tampered with. Essentially, the defendant asks the court to impose more stringent prerequisites for the admission of video footage that was recorded by a police officer's body camera than that which govern the admissibility of video footage obtained from any other source. The court finds no basis for doing so. However, the court's decision does not foreclose upon a defendant's right to seek to compel disclosure of audit trails when circumstances evince that body camera footage may have been tampered with.
The defendant also maintains that the audit trails should be discoverable because they reveal "potentially important information that is not recorded in the videos themselves," such as who has reviewed the recording and when. Even assuming this potential, in the absence of a particularized showing of a need for this information, the court declines to order the disclosure of the audit trails here in question. To hold otherwise and mandate disclosure of the audit trails the court would be employing an impermissibly broad reading of the statutory discovery framework.
Furthermore, the defendant's reliance upon CPL § 245.20(1)(u)(i)(B) is misplaced. That provision addresses information seized or obtained by or on behalf of law enforcement; its application does not extend to information electronically generated by law enforcement personnel.
Accordingly, the defendant's motion is denied.
The court directs the parties to diligently confer to resolve any further discovery disputes (CPL § 245.35[1]).
The foregoing constitutes the decision and order of the court. Dated: May 25, 2021 _________/S/__________ Matthew J. D'Emic, J.S.C.