Opinion
Docket No. CR-01084-21
05-31-2023
People of the State of New York v. Shannon Taylor
Scott D. McNamara, Oneida County District Attorney (Jennifer M. Scholl, Esq. of counsel) for the People John G. Leonard, Esq. (Leonard Criminal Defense Group, PLLC, of Rome, New York)
Scott D. McNamara, Oneida County District Attorney (Jennifer M. Scholl, Esq. of counsel) for the People
John G. Leonard, Esq. (Leonard Criminal Defense Group, PLLC, of Rome, New York)
Joseph A. Saba Jr., J.
This matter comes before the court on remand from Oneida County Court for the purpose of conducting a fact-finding hearing to determine whether electronic data obtained from an analysis of the defendant's breath sample is discoverable pursuant under Article 245 of the Criminal Procedure Law. The hearing was conducted on April 14, 2023, and as a result the court makes the following findings of fact and determinations as it relates to all relevant statutory provisions.
Argument by the Parties
The defendant argues the underlying certificate of compliance, filed by the People, is illusory as they failed to utilize due diligence to obtain and provide the material in question before announcing readiness. To support this argument the defendant asserts the People had prior knowledge that breath tests contain raw data files along with graphs of breath samples however, this information was never disclosed during the initial discovery process as required by CPL §245.20(2). The defendant also argues the information in controvert falls under the purview of CPL §245.20(1)(j) as the data was "made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing..." In addition, the data point materials and graph of the defendant's breath samples are contained within the DataMaster instrument which is in the possession of the Utica Police Department, and can be accessed by the People. The defendant also adds it is not unduly burdensome for the People to obtain and provide these materials as a subpoena is not required for access to same.
The People continue to maintain the breath test raw data files and graphs fall outside the scope of discovery pursuant to CPL §245.20, as the Utica Police Department does not have the capabilities of extracting or utilizing such data. The prosecution's main argument for non-disclosure focuses primarily upon the fact that the data and graphs are not in the possession or control of the People, nor any other law enforcement agency. (CPL §245.20(2)) To further this argument the prosecution asserts the material in controvert is analogous to raw data which is the product of a DNA analysis, as conducted by the New York City Office of Chief Medical Examiner (hereinafter referred to as 'OCME'). It has been held that OCME is an independent, non-law enforcement agency that is not within the control of the District Attorney's Office and as such, these records were not subject to automatic discovery. The prosecution further cites People v. Pitts, Sup. Ct., Queens County, August 13, 2021, Mullen, J., Ind. # 2409/2019, to support their position, which found DCJS's maintenance of files for the New York State DNA Databank does not constitute law enforcement activity, and that such activity is analogous to "holding and maintaining the raw data files" contained on the DataMaster instrument. In essence, the prosecution argues that merely housing such information does not rise to the level of acting in a law enforcement capacity which would be required in order for the automatic discovery statute to apply in this scenario.
Procedural History
On or about February 27, 2021 the defendant was charged with the following offenses:
1. Aggravated driving while intoxicated, in violation of Vehicle and Traffic Law § 1192-2a(a);
2. Driving with.08% of one percent or more of alcohol, in violation of Vehicle and Traffic Law §1192-2;
3. Driving while intoxicated, in violation of Vehicle and Traffic Law §1192-3.
On June 9, 2022 the defendant filed a motion seeking the following relief:
1. An Order invalidating the People's Certificate of Compliance and Notice of Readiness filed on April 15, 2021, as the filing was illusory;
2. An Order pursuant to CPL §170.30(1)(d) and §170.35(1)(a) dismissing the charges on the grounds that the prosecution in this matter is untimely pursuant to CPL §30.30(1)(b).
After having reviewed the submissions from counsel, the court issued a written decision on July 12, 2022 denying the relief requested. For contextual purposes the court will set forth the arguments made by the parties at that time, as it relates to the prior motion, along with a synopsis of the final findings which were made.
The defendant argued the People failed to comply with the requirements of CPL §245.20(1), as they had not provided the breath graph, raw data files along with volume and flow rates which were the result of the defendant's breath sample taken on February 27, 2021. Since this information was not provided by the People, the defendant asserted the certificate of compliance and notice of trial readiness filed by the prosecution should be deemed illusory, resulting in a speedy trial violation. The People argued the defendant's breath test raw data files and graphs fell outside the scope of discovery, as the Utica Police Department was never in possession of such materials. As such, the certificate of compliance was filed in good faith with due diligence having been undertaken to provide all discovery materials, as required by statute.
The court agreed with the People and found there was no statutory requirement to supply the defendant with such records, as the data in controvert was never in the possession of the prosecution. In addition, the court found such data was maintained solely by DCJS, and this agency is not under the prosecution's purview nor does it function as a law enforcement entity requiring disclosure of said material pursuant to Article 245 of the CPL.
Summary of Testimony
The sole witness the People called was Steven Carluccio. Mr. Carluccio is the Highway Safety Equipment Technical Supervisor at the Division of Criminal Justice Services. Mr. Carluccio testified his duties include overseeing the breath analysis calibration and speed enforcement certification activities for municipal police departments and sheriff's offices throughout the state. Mr. Carluccio testified that agencies in New York State utilize the breath test instrument known as a DataMaster DMT by Intoximeters. These instruments are owned by the Division of Criminal Justice Services, and are on loan to agencies such as the Utica Police Department. The witness further referenced People's Exhibit No.1, which is an electronic communication containing a series of questions posed by the Assistant District Attorney as it relates to raw data material collected by DataMaster instruments. Mr. Carluccio further explained the DataMaster machine collects three raw data files and a PDF document, each time a person's breath is analyzed. Of those raw data files, one retains information that the instrument collects while the other two files contain data points which the instrument gathers to generate a graph of the subject's breath flow, to detect a response, as they are breathing into the machine. The witness added the two files containing data points are not accessible, as only the breath graph which is produced as a result thereof, is available for production. Mr. Carluccio also testified this raw data has no correlation to the specific outcome or sample that is generated for law enforcement to utilize to prosecute a case. The witness went onto state that these raw data files along with the breath graph itself is only accessible to DCJS and more specifically, the Highway Safety Technology Unit within such agency. He also stated the only data which the police have access to is the ticket that prints out from the machine at the completion of the breath test. Mr. Carluccio then stated to gain access to this raw data, law enforcement would have to consult with the Highway Safety Technology Unit at DCJS. Supervisor Carluccio added that only the "Technicians and Supervision of the Highway Safety Technology Unit at DCJS" have access to any raw data files. Mr. Carluccio also explained the DataMaster devise contains an S.D. Card which is a microchip that stores information. He went onto state that this card is locked within the device, is guarded by security bits, and only accessible by a technician at DCJS.
The court will note, the witness continued to provide technical testimony as to the transmission of data between DataMaster instruments and DCJS itself. In this regard, the witness testified that after a breath sample is completed, the data collected is transmitted to the DCJS server via an ethernet connection or by manually dialing the instrument to "pull the data over". This process ensures the information is secured onto the server. The witness further stated that if the ethernet connection is made, there would be an automatic transmission of this data and would obviate the need for any manual dialing. Mr. Carluccio then stated when the raw data is transmitted, it is then stored on DCJS's server, and there is no notification process as to when such information is received.
Mr. Carluccio then stated DCJS does not act as a law enforcement agency, and if a police department has any issues with a DataMaster instrument they would need to consult an individual who serves under his direction. The witness added that law enforcement's use of the DataMaster instruments is limited to subjecting individuals to breath tests. Mr. Carluccio added there is a limited number of individuals within his agency that have access to any of the raw data files, and DCJS is merely "retaining" this information for an indefinite period. As to the access of this information by the prosecution and defense, Mr. Carluccio stated that when the new discovery laws were adopted a process was instituted to make this information available. The witness further testified "that if the prosecutorial staff decided that the information was discoverable they could reach out to us.then we would request that they complete a survey" and for the defense side, it would be available via a FOIL or by subpoena.
On cross-examination, the witness testified that DCJS is a trained and qualified service provider to law enforcement agencies. Mr. Carluccio then stated there are individuals in the Office of Public Safety who manage the training aspects / programs for the DataMaster devices which would include rough analysis. The witness then testified for defense counsel to obtain raw data and breath graphs a subpoena would need to be issued. The subpoena is then reviewed by an attorney for DCJS, prior to information being supplied. Mr. Carluccio then re-iterated that the People would need to complete a "survey" prior to the disclosure of any material. Upon submission, this survey is reviewed along with credentials of the person making such request being verified, by the witness or a supervisor within the department. Hence, the request of the People for such information, is NOT automatically given over by the mere asking.
As to the memorandum dated August 26, 2020 (Defendant's Exhibit B) the witness stated it was sent to every district attorney's office that had a DataMaster DMT within their jurisdiction. The witness then testified the reason why this memorandum was issued was "to be transparent and allow them an opportunity to decide whether or not that material was discoverable", and as a result of this memo only one district attorney had reached out to him for further inquiry. Mr. Carluccio added there was no decision made by DCJS as to whether or not such information was in fact discoverable under the law. The witness was then directed to review the National Patent Analytical Systems, Inc., memorandum dated March 12, 2012 entitled "Use of the Plot Functionality of the DataMaster DMT". (Defendant's Exhibit C) Mr. Carluccio testified the contents of the memo discusses the raw data files, the breath graph, and "how it takes data points in generation of that graph". He also added that the information referenced in the document is housed by the servers at DCJS.
Defense counsel then referenced Defendant's Exhibit D, which the witness stated was the breath test ticket of the defendant dated February 27, 2021, accompanied by the graph of the breath flow and detected response. The witness then testified this data was stored by DCJS just as all of the calibration and maintenance records are for each DataMaster machine. Mr. Carluccio was then questioned about Defendant's Exhibit E, which was one of the three raw data files which keeps track of various information including voltage and of the infrared light. The witness further explained that said document is a printout of the raw data file which collects information about the test, and what the instrument is looking at upon a breath sample being taken. Mr. Carluccio then stated this exhibit was specific to the defendant, and data such as inferred results which are referenced therein, are used along with proprietary mathematical calculations to print out graphs. The witness added this raw data file is "sort of a repository for the information that's typed in" and it "retains information that it is reading on the instruments throughout the conducting of the test." Mr. Carluccio also stated the information in this raw data file is what the algorhythms and proprietary software use to determine the validity of the sample taken, and such information is on the S.D. card. In addition, if one of the parameters were not met, that is they were either too high or low, an error message would be printed on the ticket. The witness also added that DCJS does not interpret the raw data files.
Mr. Carluccio also testified that when an error message is printed on a ticket, that DCJS would investigate further to determine if this was a one time incident with the DataMaster machine or an ongoing issue. The witness explained that if there was a "blank error" printed, it could be a result of ethanol being present in the room as opposed to there being an issue with the machine. Also, an invalid sample could be from mouth alcohol, or the blow pattern which would show up on the breath graphs / raw data files. Mr. Carluccio re-iterated that although his department now has the ability to open raw data files, they do not interpret them. The witness also testified there are two GPH files on the DataMaster machine that can not be opened. These files contain data points that the instrument takes as it is generating the visual representation on the graph.
The witness gave further testimony that the survey referenced in prior testimony was limited to files related to a breath test and the relevant information is automatically uploaded to a Google Cloud drive which access may be had by the People. If inquiry is made as it relates to those records, the People would be referred to links sent electronically so they could be downloaded.
On re-direct examination, the witness referenced Defendant's Exhibit D, and reviewed the information which is recorded on the 'Subject Test' sheet. Mr. Carluccio then stated the information contained therein is also in the raw data information and is essentially the same material just in "a more refined format". The witness then explained the breath graph in further detail, and that it is a visual representation as the subject is blowing into the instrument. Mr. Carluccio then testified that two plots can be identified on the graph, one being a detector response and in the case of a successful test, a dark line will appear which is indicative of ethanol. He went onto state that the dotted line is a plot of the subject's breath flow, as it is passing through the instrument however, the blood alcohol content can not be determined from the graph. The witness further stated that in the event of an invalid sample, a breath graph would still be generated as there would be an anomaly in the data points. However, if there was an issue such as radio frequency interference, a final graph is not generated. In either situation this would be included on the subject test as made part of Defendant's Exhibit D.
On re-cross examination, the witness stated all relevant information is contained on the breath test ticket. The witness further acknowledged the ticket does not indicate there is a wet bath simulator however, from the temperature generated on the ticket it demonstrates there would not have been a dry gas system for testing purposes. There was further testimony elicited, setting forth that certain information is not included on the breath test ticket which is included in the raw data file such as the voltage which was utilized. Mr. Carluccio added that the test ticket does not print specifics that are in the raw data file generated by the software, but does indicate "internal standard verified" which would be a check of the Xq value. Mr. Carluccio then testified that if the defendant had blown into the DataMaster instrument four times, the breath graph would not show four curves rather, there would be one graphical representation of her breath during this period. In addition, in the event the blow pattern was not proper an incomplete notation would appear on the ticket.
There were no other witnesses called to testify at the hearing, and the court reserved decision pending receipt of any memoranda of law by the parties. It is noted, both the Assistant District Attorney and defense counsel submitted closing arguments on April 28, 2023 as directed.
The following exhibits were offered and received into evidence:
People's Exhibit #1: Electronic Communications between ADA Scholl and Steven Carluccio
Defendant's Exhibit A: Transcript from Hearing conducted on March 17, 2023 from Rome City Court
Defendant's Exhibit B: Memorandum from Steven Carluccio dated August 26, 2020 re: Evidential Breath Test Raw Data files
Defendant's Exhibit C: National Patent Analytical Systems, Inc. Memorandum
Defendant's Exhibit D: Subject Test Result
Defendant's Exhibit E: Raw Data File
Findings of Fact & Conclusions of Law
As background, on January 1, 2020 the provisions of CPL Article §245 became effective in New York State which require the People to disclose information referred to as "automatic discovery" without the necessity of filing discovery demands. The specifics of the automatic discovery provisions are made part of CPL §245.20(1), which include twenty-one categories of items. These items are to be produced to the defendant "as soon as practical", and no later than the times prescribed by §245.10(1)(a)(i) and (ii). Upon enactment of the statute, disclosure was required to occur within a fifteen-day period. This time frame was subsequently extended on May 3, 2020, upon amendment of the law, which now allows for discovery obligations to be fulfilled within thirty-five days, upon the defendant being arraigned on a misdemeanor complaint.
The automatic discovery obligations further require the People to disclose "all known" materials involved in the case, and to certify "due diligence" was exercised in determining the existence of such materials.
CPL §245.20(2) states, in pertinent portions, the following:
"The prosecutor shall make a diligent, good faith effort, to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, 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 in the possession of the prosecution."
As the People's obligations are set forth above, compliance with the statute must be solidified by the filing of a certificate which announces readiness and declares that all automatic discovery has been produced. (CPL §245.50(1)) The statute states:
The court recognizes that portions of CPL Section 245.50 were amended by L 2022, Ch. 56, §1 (Part UU, Subpart D), and became effective as of April 9, 2022. Given the date of the filings the court will not be applying any of the amendments made part of the 2022-2023 New York State Budget.
"When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall 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. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided."
It is clear by the plain language of the statute, a certificate of compliance itself must state disclosure has been made upon exercising due diligence, and reasonable inquires being made as to whether certain information exists. Since the enactment of CPL §245, there has been consistency between the courts, which have held, the People are required to "comply with all discovery obligations outlined in section 245.20, as a prerequisite to their filing of a valid statement of readiness." (People v. Villamar, 69 Misc.3d 842 [Crim Ct, New York County 2020]) Furthermore, the production of all automatic discovery is considered a "condition precedent" to the People filing a proper certificate of compliance. (People v. Napolitano, 67 Misc.3d 1241 (A) [Sup. Ct. NY County 2020]) When a certificate of compliance's validity is challenged, good faith may be demonstrated by the People, by "recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good-faith arguments for why certain materials are not discoverable under the statute." (People v. Georgiopoulos, 71 Misc.3d 1215 (A) [Sup. Ct., Queens County 2021]). In the matter before the court, a focus will be placed upon the People's arguments why the in information in controvert is not discoverable and alternatively consider the counter points as asserted by the defendant.
In the event additional discovery is provided, in accordance with CPL §245.60, the People must comport with the filing and service requirements pertaining to a supplemental certificate, as defined in CPL §245.50[1]. Furthermore, no "adverse consequences to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith and reasonable under the circumstances, 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]). It is noted that on May 3, 2020, CPL §245.50(1) was amended to include the phrase "reasonable under the circumstances", indicating that disputes pertaining to discovery must be examined on a case-by- case basis taking into consideration the underlying circumstances. (People v. Bruni, 71 Misc.3d 913 [Albany County Ct., 2021] Furthermore, upon the initial enactment of CPL §245, it was contemplated the People's discovery obligation is one that is ongoing, as there would be no need for a "prejudice" evaluation as outlined in CPL §245.80, in the event of non-compliance. (People v. Askin, 68 Misc.3d 372 [Nassau County Ct, 2020]) However, it is noted that pursuant to CPL §245.80(1)(b) that if material is lost or destroyed prejudice need not be shown, for a sanction to be imposed.
With this statutory framework in mind, an inquiry needs to be made as to whether or not the People had an obligation to disclose and provide the breath graph and raw data files of the defendant's breath sample from the DataMaster DMT instrument.
1. Raw data files along with breath graphs are not in the custody or control of the prosecution and are available to the defendant upon request to DCJS
It is without controvert the information in question does in fact relate to the subject matter of this case, as the raw data files contain data points which are in turn used to generate a breath graph from the defendant's breath sample. While this information does not serve as a basis to actually determine an individual's alcohol concentration level, it is a qualitative tool to evaluate a breath sample itself. In other words, the data contained on the breath graph represents values up until an attempt meets the sample acceptance criteria, with the alcohol measurement occurring after the sample has been accepted. The question then becomes whether such data is in the possession, custody or control of the prosecution or other individuals / entities under their direction as defined by CPL §245.20(1) and if not, whether they are duty bound to supply this material pursuant to CPL §245.20(2). The applicable provisions in this regard are the following:
CPL §245.20(1) states:
Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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, including but not limited to...
CPL §245.20(2) states (in part):
Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain.
Upon applying the plain meaning of CPL §245.20(1) to the facts of this case, the court unequivocally finds the People never obtained possession or control of the data subject to this motion. While the Utica Police Department may have physical possession of DataMaster instruments, the information contained therein cannot be extracted, examined nor retrieved by members of the police force. Physical possession of the instrument does not automatically translate to possession of the data transmitted from the devise, or the information securely stored within for Article 245 purposes. These devices are neither owned by the police nor do any of their members provide maintenance on these instruments. Also, whether the raw data files and breath graphs generated from a breath sample are automatically uploaded to the DCJS server via an ethernet connection or later transmitted by manually dialing the device, is a process outside the scope of the Utica Police Department. The testimony and evidence presented, clearly demonstrates that it is only the trained technicians employed within the Highway Safety Technology Unit at DCJS who can access the S.D. Card contained within the DataMaster device itself to obtain the raw data and accompanying graphs. Unlike notepads, drawings, depositions, or photographs collected by a police officer at the scene of alleged criminal activity, the information in controvert is securely contained on a microchip within a devise that the arresting agency can not access nor do they have control over. This is not information collected by a law enforcement officer which is then in turn, provided over to DCJS for further analysis which would require disclosure. The DataMaster unit is a locked instrument with security bits in place to avoid corruption of the data captured, and prevent access by other agencies than DCJS. Without having custody or control of such data, any argument that disclosure is required by CPL §245.20(1) is simply defeated. The court further relies upon People's Exhibit #1 which is an electronic communication exchange between the Assistant District Attorney and the witness who testified at trial to support this conclusion.
The following questions were posed by the People, along with the respective answers by Supervisor Carluccio:
Q: Does any police department have access to there files? Can the files be accessed by a person with "supervisor" or "administrator" authority directly on the instrument?
A. No police department can access the files at their level. Only DCJS technical staff has the ability to access the files.
Q. Can law enforcement access the history of breath tests?
A. The only access they have is the "COPY" button on the screen, which allows them to print a copy of the last test that was run.
Q. Is the raw data information sent directly to DCJS or is it ever in law enforcement hands/possession prior to it being sent?
A. Data resides on the DMT, but is not accessible by any law enforcement agency, and it is electronically sent to and stored on a DCJS secured server.
The court further notes, that none of the data subject to this proceeding was utilized by law enforcement in establishing probable cause to arrest the defendant for the charges subject to this criminal prosecution. The data collected was a pre-cursor to an actual determination being made as to the subject's alcohol concentration level. Based upon the findings above, subsection one of CPL §245.20 does not cast the People with an affirmative obligation to provide the raw data or breath graphs from the DataMaster instrument.
In furtherance of a full analysis, the court would be remiss in not reviewing the supplemental language of CPL §245.20(2) which states discoverable information must be provided by the People, "where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain ". The concise testimony of Supervisor Carluccio, revealed that such data has been made easily accessible to this defendant, as would be done for any defendant/defense counsel, upon such a request being made via a subpoena. Furthermore, while a member of any district attorney's office is required to complete a "survey", to gain access to this information, the contents of the survey are essentially the same as a subpoena as required by a defendant. The DCJS representative re-affirmed this during the course of the hearing by stating the "survey" needed by the prosecution is essentially a subpoena, "just not in the form of a subpoena". This testimony demonstrates the People along with defense counsel, are treated equally when it comes to obtaining such data from DCJS and any argument otherwise is merely semantics. Furthermore, the procedures implemented by DCJS to gain access to the contents of the S.D. card, does not shift the burden upon the People to provide this information as part of their discovery obligation. The court finds that while the raw data and breath graphs exist, they are simply not within the People's control and there are no barriers denying a defendant from independently accessing such information. (CPL §245.20(2))
As such, the court further finds, the People's actions have not run contrary to the provisions of CPL §245.20(1) or CPL §245.20(2) by not suppling the information which is securely stored within the DataMaster devise and transmitted solely to the Division of Criminal Justice Services.
2. DCJS is not a law enforcement agency nor engaged in law enforcement activity
In addition, consideration must also be given to the more expansive provisions CPL §245.20(1)(j) which requires disclosure of this type of data, when it is possessed by an agency engaged in law enforcement activity. As to whether this statutory provision imposes disclosure requirements upon the People, relative to raw data and breath graphs, an examination of the limited case law and statute is required. CPL §245.20(1)(j) states:
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, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prosecutor intends to call as a witness at trial or a pre-trial hearing, or which the prosecution intends to introduce at trial or a pre-trial hearing. Information under this paragraph also includes, but is 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 analyses or results by laboratory personnel regardless of the laboratory's final analysis or results. If 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. The prosecution shall not be required to provide information related to the results of physical or mental examinations, or scientific tests or experiments or comparisons, unless and until such examinations, tests, experiments, or comparisons have been completed.
The pertinent inquiry upon review of this portion of the law, is the role that DCJS has in the collection and storing of raw data files along with breath graphs, and whether such actions constitute engaging in law enforcement activities. While the court recognizes the importance of whether DCJS should be classified as a "law enforcement agency" pursuant to Article 245 of the CPL, it is also of utmost importance to examine the purpose, utilization, and manner which they store the type of data subject of this motion. It is noted, while the Criminal Procedure Law does not define what constitutes a law enforcement agency, it is of common knowledge that such entities are authorized by the State to engage in the investigation along with prosecution of criminal activity.
First, if DCJS is considered to be a law enforcement agency they are in turn, engaging in law enforcement related activities for purposes of the relevant statute. While the defendant maintains the holding in Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196 [2005], is binding upon this court in determining that DCJS is a law enforcement agency, such argument fails to consider the limited scope of the opinion. The Court of Appeals concluded that CPL §160.50(1)(d)(ii) does not permit the unsealing of an individual's criminal records, upon a prosecutor's ex-parte request, for the purpose of making sentencing recommendations. The prosecution in that case argued that the People should be considered a law enforcement agency and as such, fall into one of the six exceptions where disclosure of sealed records is permitted. In its analysis, the Court of Appeals so noted that the term "law enforcement agency" included police departments and the Division of Criminal Justice Services however, relied upon DCJS being referenced within several other portions of CPL §160.50. Specifically cited was CPL §160.50(1) which states that upon sealing of a criminal record, when there has been a termination of a criminal action under this section of the law, the clerk of court must give notice of such favorable termination to "the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies ". In essence, the court's finding was based upon the term "law enforcement agency" always appearing in concert with the terms "police department" and / or "division of criminal justice services" within this very narrow and specific provision. It is clear that CPL §245.20(1)(j) is distinguishable from CPL §160.50(1), as there are no other reference to DCJS within this section of the law nor any portion of Article 245. Given this limited holding in Katherine B. v. Cataldo, supra, the court agrees with the People in their assessment that reference to DCJS being a "law enforcement agency" is limited to the sealing and unsealing provisions of CPL §160.50, and is not applicable to the discovery statute.
In determining that DCJS is not a law enforcement agency, the court has also considered DCJS's overall role in the criminal justice system and finds it is one of support in the areas of training, grant management along with data analytics. Such support extends beyond police agencies to other branches of government along with providing a host of services within communities such as youth justice initiatives. The 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. While the court has focused on CPL §245.20(1)(j) it would be remiss in not noting that DCJS is not a law enforcement agency under the provisions of CPL §245.20(2). This portion of the statute states all information related to the prosecution of a charge, in the possession of a law enforcement agency, is deemed to be in the possession of the prosecution and is subject to discovery.
Secondly, the court further finds the activities which DCJS has engaged in, during the course of this criminal proceeding, does not constitute "law enforcement activity". To this end, the court relies upon the credible testimony of Supervisor Carluccio who not only stated that DCJS is not a law enforcement agency, but also testified the agency does not partake in the collection of any evidence. This distinction is of utmost importance as DCJS only stores the raw data files along with breath graphs which are automatically transmitted to the agency by way of an ethernet connection from data stored on the microchips within the DataMaster instrument. The receipt and preservation of this data demonstrates there is no affirmative action taken by DCJS in the prosecution of these types of criminal matters. To further support this conclusion, the memorandum referenced by Supervisor Carluccio entitled "Evidential Breath Test Raw Data Files" (Defendant's Exhibit B) states that raw data files / graphs, "are automatically downloaded from each instrument in the field that are connected to a DCJS server. DCJS is not notified when an arrest has been made or when the above described files have been downloaded. As a result, DCJS does not know when or if this information is downloaded to the server." This type of passive role is completely contrary to actions taken by law enforcement agencies who collect evidence for the ultimate purpose of charging individuals with criminal conduct. The court in People v. Preston, 70 Misc.3d 355 [Cohoes City Ct. 2020] addressed this same issue and found DCJS is not engaging in law enforcement activity by maintaining these records as in doing so it "does not require DCJS to establish or collect data and, more importantly, it does not require DCJS to make decisions based upon the data." While the court in People v. Preston, supra, may not have had the benefit of a hearing on this issue, the evidence taken by this court only re-affirms the determination that DCJS's role in transmitting and storing of this information does not equate to law enforcement activity. In addition, although case law in this area is sparse, other courts have explored the impact of the discovery laws have had upon records maintained by DCJS. In People v. Pitts, Sup. Ct., Queens County, August 13, 2021, Mullen, J., Ind. No. 2409/2019, the court found "DCJS was not acting in a law enforcement capacity by maintaining the records relating to defendant's DNA profile in the state Databank" and there was no obligation under Article 245 requiring disclosure. It is evident that DCJS has a distinct role in the criminal justice system, and the storing of raw data and breath graphs does not invoke the automatic discovery provisions of CPL §245.20(1)(j).
3. Due Diligence was exercised by the People pursuant to CPL 245.50(1 )
Based upon all of the findings herein, the court reaffirms the prior determinations set forth in the Memorandum Decision dated July 12, 2022, in that the People's original certificate of compliance was filed upon diligent, good faith efforts being undertaken to ascertain the existence of discoverable information. In addition, the court relies upon the holding in People v. Georgiopoulos, supra, as good faith may be accomplished by the People upon "recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good-faith arguments for why certain materials are not discoverable under the statute." The People have established through the evidence submitted and testimony from the Highway Safety Technology Unit Technical Supervisor at DCJS that they were not in possession of the data subject to the underlying motion requiring disclosure pursuant to the automatic discovery rules. In addition, it was demonstrated that the information in controvert is accessible to the defendant, alleviating any statutory obligation to produce such materials. As a result of such findings, the People's Certificate of Compliance is not deemed to be illusory, proper readiness for trial was made and no speedy trial violation has occurred.
This constitutes the Decision and Order of the Court. So Ordered.