People v. Gills

52 Misc. 3d 903, 33 N.Y.S.3d 683
CourtNew York Supreme Court
DecidedJune 21, 2016
StatusPublished
Cited by2 cases

This text of 52 Misc. 3d 903 (People v. Gills) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gills, 52 Misc. 3d 903, 33 N.Y.S.3d 683 (N.Y. Super. Ct. 2016).

Opinion

OPINION OF THE COURT

Elisa Koenderman, J.

The defendant is charged by indictment with robbery in the first degree (Penal Law § 160.15 [1]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). The defendant moves pursuant to Criminal Procedure Law § 240.20 (1) (c) for discovery of the electronic raw data which yielded his DNA profile. The court initially denied the defendant’s motion. Upon reargument and reconsideration, however, the court grants the motion. Since the electronic raw data qualifies as a “written . . . document . . . concerning a . . . scientific test . . . made by, or at the request or direction of a public servant engaged in law enforcement activity” (CPL 240.20 [1] [c]), the People must disclose it.

The allegations are that on May 27, 2015, in a Dunkin’ Donuts in Queens County, an individual jumped over the counter while displaying a knife, removed $192 from the cash register and fled. Surveillance video captured the perpetrator knocking over the cash register touch screen with his hand during the incident. A New York Police Department (NYPD) officer swabbed the touch screen for biological evidence and submitted it to the Office of Chief Medical Examiner (OCME) Forensic Biology Department for DNA analysis. The OCME identified a mixture of DNA from at least three people, including one major male contributor. The OCME uploaded the 15 loci profile of the major male contributor to the New York State DNA Index System, which resulted in a match to the defendant’s “Convicted Offender” profile.

[905]*905The defendant specifically demands the electronic raw data generated by the capillary electrophoresis instrument prior to processing or analysis. He contends that the OCME is able to extract this data from its .fsa files and compile it into an electronic document. Moreover, he asserts that because the OCME performed the DNA analysis at the NYPD’s request, the People are bound to provide it.

The People oppose the defendant’s motion, alleging that the electronic raw data “is solely machine output,” “does not exist in any tangible readable form” and has “no discernable meaning.” They assert that in order to retrieve the electronic raw data, the “OCME would have to search its individual case files and extract the raw data from the individual separate batch files where it is stored in [their] computer system [and] mingled with raw data from countless other cases.” Next, the OCME would have to “compile [the] data for all of the different stages of the DNA testing process in this case.” Only then could the OCME provide the data “on some form of electronic media.”1 In any event, the People argue that because the OCME is an independent agency outside their control, they have no obligation to produce the electronic raw data.

The electronic raw data is “a series of overlapping, jagged, intermixed multicolored peaks that have no labels or other values” (People’s response to defendant’s omnibus motion). Consequently, the OCME must process the electronic raw data through a software program2 in order to interpret it. The software program produces an electropherogram which graphically depicts, along an x and y axis, distinct peaks of different colors with numerical labels indicating alleles and peak heights. To construct a DNA profile, an analyst reviews the electropherogram to decide whether to edit any additional [906]*906peaks as nongenetic material.3 The analyst documents his edits on a table which denotes the location of the peak and reason for the edit.

The People maintain that they have complied with their discovery obligation by giving the defendant a copy of the entire OCME Forensic Biology Department file, including the electro-pherogram and edit table. The defendant counters that without the electronic raw data, he cannot adequately evaluate the DNA evidence. He states that the filters which the OCME sets for the software program affect how the peaks appear on the electropherogram.4 Thus he contends that he cannot ascertain from the copy of the electropherogram the precise height, shape and location of unlabeled peaks which fall below the OCME filter threshold. Accordingly, the defendant avers that he intends to process the raw data through two different software programs5 and that he may retain an expert.

A defendant’s right to discovery in a criminal case is statutory rather than constitutional (see Matter of Brown v Grosso, 285 AD2d 642, 643-644 [2d Dept 2001]; see also People v Colavito, 87 NY2d 423, 426-427 [1996]). By enacting the discovery statute, the legislature expressed its intent that a criminal trial “should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial” (People v Copicotto, 50 NY2d 222, 226 [1980]). Consequently, the discovery rules embody a philosophy of broad pretrial disclosure (see People v DaGata, 86 NY2d 40, 45 [1995]). This “enables [a] defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence” (Copicotto, 50 NY2d at 226). To that end, the discovery rules permit a defendant to view the prosecution’s evidence (see DaGata, 86 NY2d at 44).

[907]*907Pursuant to CPL 240.20 (1) (c), the People must produce on demand “[a]ny written . . . document . . . concerning a . . . scientific test . . . which was made by, or at the request or direction of a public servant engaged in law enforcement activity.” A “written document” “broadly covers all sorts of reports” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 240.20 at 341 [2002 ed]) and includes, for example, a diagram of a rape victim’s vagina in her medical record (People v Powell, 205 AD2d 561, 562 [2d Dept 1994]). A written document also includes the computer source code for the Intoxilyzer 5000EN (People v Robinson, 53 AD3d 63, 68 [2d Dept 2008]). The source code is a “species of text” written onto a computer chip which contains the instructions the device follows in processing information and “concerns [the] scientific tests” it conducts {id. [internal quotation marks and citation omitted]).

Accordingly, a “written document” encompasses electronic data which contains information concerning a scientific test. This interpretation is consistent with the Penal Law definition of a “written instrument” as “any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information” (Penal Law § 170.00 [1]; see also Robinson, 53 AD3d at 69).6

Moreover, a “written document” is not limited to readable text.7 Rather, any item which contains information concerning a scientific test, regardless of its form, may constitute a “written document.” Indeed, a diagram in a medical record is a “written document” but is not readable text (Powell, 205 AD2d at 562).

Additionally, a computer source code also is not readable text, but merely “a species of text” (Robinson, 53 AD3d at 68 [internal quotation marks omitted]). In fact, a source code is a [908]

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Related

People v. Fields
2018 NY Slip Op 2503 (Appellate Division of the Supreme Court of New York, 2018)
People v. Jones
55 Misc. 3d 743 (New York Supreme Court, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
52 Misc. 3d 903, 33 N.Y.S.3d 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gills-nysupct-2016.