Papers Submitted: Notice of Motion 1 Affirmation in Support 2 Affirmation in Opposition 3 Reply Affirmation 4 DECISION and ORDER The Defendant is charged with common law driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the third degree, operating without insurance and unlicensed operation of a motor vehicle, in violation of VTL §§1192(3) 511(1), 319(a) and 509(1). The Defendant now moves for an order suppressing statements he is alleged to have made, suppressing the results of a chemical test of his blood, and any other evidence obtained as a result of his allegedly unlawful detention and arrest. The Defendant further moves for an order compelling the People to produce the raw data files generated by the gas chromatograph used to perform a test of the Defendant’s blood. STATEMENTS The Defendant argues that any statements attributed to him by the People were the product of an unlawful arrest and were made involuntarily. The People argue that the Defendant’s seizure and arrest were lawful and that the statements attributed to the Defendant were made freely and voluntarily. The People, nevertheless, consent to the court conducting a hearing addressing the lawfulness of the Defendant’s seizure and arrest, as well as the voluntariness of the statements attributed to the Defendant. BLOOD TEST RESULTS While the Defendant argues that the police lacked a lawful basis to detain the him, and the People argue that the police had probable cause to arrest the Defendant for a violation of VTL §1192, as indicated above, the People consent to the court conducting a hearing addressing the lawfulness of the Defendant’s seizure and arrest. The Defendant further argues that he did not “voluntarily consent” (Epstein Affirmation, 9/25/2020, 27) to submit to a blood test. Relying on People v. Odum, 31 N.Y.3d 344, 78 N.Y.S.3d 252 (2018), the Defendant argues he was advised of the consequences of refusing to submit to a chemical test of his blood more than two hours after his arrest, thus being provided with “misleading and false information in a deliberate effort to coerce him into giving a blood sample.” (Epstein Affirmation, 9/25/2020, 25) The Defendant further alleges that he was told that if he did not submit to the requested blood test, he would be charged with a felony. The People dispute the Defendant’s allegations, arguing that the request of the Defendant to submit to a chemical test of his blood was made within two hours of his arrest. These disputed issues of fact can only be resolved at a hearing. RAW DATA The Defendant seeks an order compelling the People to produce raw data, which, according to the Defendant, was created during the Defendant’s blood test and was used to generate the blood test records which have been produced by the People. The Defendant argues that the People are in constructive possession of this raw data, because they “chose to enlist the services of the Nassau County Medical Examiner to do their work necessary to bring these charges…” (Epstein Affirmation, 9/25/2020, 48) and that the NCME was engaged in a law enforcement activity when it analyzed the Defendant’s blood sample. The Defendant further argues that the raw data is obviously in the People’s possession, custody or control, since the People received from the NCME, and turned over to the Defendant, “practically everything else in the laboratory’s case file.” (Epstein Reply Affirmation 12/3/20, 8) Further, relying on In the Matter of Singas v. Engel, 155 A.D.3d 877, 63 N.Y.S.2d 695 (2nd Dept. 2017), a case with which this court has some familiarity, the Defendant points out that the court therein directed the production of raw data files related to the gas chromatography of simulator solution, and suggests the same result should apply herein. In opposition, the People argue that the raw data the Defendant seeks is not in their possession, custody or control, but in the possession custody and control of the NCME. The People further aver that they have made a diligent, good faith effort to ascertain the existence of discoverable material or information and caused such material or information to be made available for discovery where it exists, although not within the their possession, custody or control, by turning over to the Defendant all materials given to them by the NCME relating to the testing of the Defendant’s blood sample. The People further allege that the NCME has not, and will not, provide them with the raw data sought by the Defendant and that they are not required to obtain this material by subpoena duces tecum, noting that the Defendant may seek this material from by the NCME by subpoena. CPL §245.20(1)(j) provides, in pertinent part: (1) 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: (j) 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 issue before the court is not whether the raw data which the Defendant seeks is subject to discovery. The issue is whether the raw data, which is in the actual possession of the NCME, is in the constructive possession, custody or control of the People. The plain language of the discovery statute, particularly CPL §§240.20(1)(j) and 240.20(2), which appear to recognize well established case law, provides the answer. As indicated, CPL §245.20(1) provides that the prosecution must disclose all items and information that relate to the subject matter of the case which is in their possession, custody or control and in the possession, custody or control of “persons under the prosecution’s direction or control[.]” Further addressing this subdivision, CPL §245.20(2) provides, in pertinent part: “ 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 to be in the possession of the prosecution.” This latter statutory provision is consistent with prior case law. See: People v. Railey, 159 Misc.2d 393, 398, 604 N.Y.S.2d 680, 683 (Sup. Ct. N.Y. Co. 1993), aff’d 206 A.D.2d 102, 618 N.Y.S.2d 649 (1st Dept. 1994) ["Clearly, documents in the custody of law enforcement agencies such as the Police Department (People v. Ranghelle, 69 N.Y.2d 56, 64, 511 N.Y.S.2d 580, 503 N.E.2d 111 [1986]) or the State Division of Parole (People v. Fields, supra) are deemed to be in the constructive possession of the People and must be turned over.”]; People v. Nova, 206 A.D.2d 132, 134, 618 N.Y.S.2d 645, 646 (1st Dept. 1994) ["Traditionally, documents in the possession of law enforcement agencies have been deemed to be in the constructive possession of the People and are required to be produced."] It is, in fact, this well-established case law, and the codification of same, which distinguishes Singas v. Engel, supra. from the matter presently before this court. The Legislature notably omitted laboratories and, specifically, medical examiner’s offices from this provision of CPL §245.20(2). This too is consistent with extensive existing case law which provides that medical examiners’ offices are not law enforcement agencies and are generally independent of the District Attorney’s office. In People v. Washington, 196 A.D.2d 346, 350, 612 N.Y.S.2d 586, 588 (2nd Dept. 1994) the Appellate Division made clear, “OCME [Office of Chief Medical Examiner] is not a law enforcement agency.” In affirming that decision, the Court of Appeals stated, in no uncertain terms, “it is clear that the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor, and that OCME is not a law enforcement agency.” People v. Washington, 86 N.Y.2d 189, 192, 630 N.Y.S.2d 693, 695 (1995) See also: People v. Brown, 13 N.Y.3d 332, 340, 890 N.Y.S.2d 415, 420 (2009) ["OCME and Bode (an independent lab) are not law enforcement entities; they are scientific laboratories that work independently from District Attorney and New York City Police Department."]; Scheufler v. Bruno, 250 A.D.2d 268, 271, 684 N.Y.S.2d 305, 306 (3rd Dept. 1999) ["The Medical Examiner is not a peace officer (see, CPL 2.10) and has no law enforcement powers."] In further support of the Legislature’s recognition of this existing case law, and intention to codify same, is that portion of CPL §245.20(2) which provides, “The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge[,] and that portion of CPL §245.20(1)(j) which provides, “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 material under this paragraph to be made available for disclosure.” Contrary to the Defendant’s argument, the fact that the above discussed cases involved the disclosure of Rosario1 material, as opposed to other items of discovery, does not render them distinguishable or inapplicable to the issues presently before the court. The graveman of those decisions, and others, was not the nature of the items to be disclosed, but, as in the matter before this court, whether the items in question were in the possession, custody or control of the prosecutor. In fact, the court in People v. Washington, supra. at 350, 612 N.Y.S.2d 586, 588 (2nd Dept. 1994) aff’d 86 N.Y.2d 189, 630 N.Y.S.2d 693 (1995), specifically noted that “the precise issue raised on the instant appeal” was whether OCME was a law enforcement agency. The court clearly answered that question in the negative. See: People v. Washington, supra. at 192, 630 N.Y.S.2d 693, 694 (1995) ["Where the material sought is in the possession of a person or agency other than a law enforcement agency, the test of the People's obligation to produce is whether the items sought are in the 'control' of the People (citations omitted)."]; People v. Railey, supra. at 398, 604 N.Y.S.2d 680, 683 (Sup. Ct. N.Y. Co. 1993) aff’d 206 A.D.2d 102, 618 N.Y.S.2d 649 (1st Dept. 1994) ["The courts have consistently held that disclosure under Rosario is only required when the subject material is within the People's actual or constructive possession custody or control."]; People v. Nova, supra. at 134, 618 N.Y.S.2d 645, 646 (1st Dept. 1994) ["it has been consistently held by the Court of Appeals that the People's obligation to produce the pretrial statements of their witnesses is limited to material which is in their possession or control (People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383)."] Likewise, contrary to the Defendant’s argument, the fact that the NCME has provided the People with a toxicology report regarding the testing of the Defendant’s blood and the results of that testing does not mean that the NCME is performing a prosecutorial function. See: People v. Smith, 206 A.D.2d 102, 110-111, 618 N.Y.S.2d 649, 654-655 (1st Dept. 1994) aff’d 85 N.Y.2d 1018, 631 N.Y.S.2d 280 (1995), wherein the defendants argued that materials created by the Medical Examiner “are constructively within the People’s possession because the OCME performs a ‘prosecutorial function’ in that it generates material ‘during the course of the primary criminal investigation’, and it is therefore a ‘vital part of the prosecutorial team’ in homicide cases.” (italics in original.) Rejecting this argument, the court concluded: “The sole purpose of the OCME’s investigations is ‘to give an impartial scientific determination of the cause of a person’s death and not to determine whether an individual is guilty, or not guilty, of a crime’ (citations omitted). Thus the OCME’s connection with any criminal prosecution is merely an incident of its duty to render impartial, scientific determinations with respect to the cause of a person’s death and related matters of forensic science.” See also: People v. Nova, supra. This principle equally applicable to the analysis of the Defendant’s blood performed by the NCME and the toxicology report generated by that analysis. Similarly, the fact that the NCME has made some documentation regarding the Defendant’s blood test available to the People does not mean the People have control over those records. As noted in People v. Washington, supra. at 351, 612 N.Y.S.2d 586, 589 (2nd Dept. 1994) aff’d 86 N.Y.2d 189, 630 N.Y.S.2d 693 (1995), “The mere fact that the District Attorney has access to records generated by OCME does not rise to the level of control required under the Rosario rule…. the District Attorney has no control over the form of the records kept by OCME, or which records OCME decides to turn over to the prosecution.” See also: People v. Smith, supra. at 112, 618 N.Y.S.2d 649,655 (1st Dept. 1994) aff’d 85 N.Y.2d 1018, 631 N.Y.S.2d 280 (1995) ["documents in the possession of the OCME are not in the constructive possession of the People."] “Accordingly, the People [do] not have to obtain the raw [] data from [NCME] and then provide it to the defense…since defendant [can] obtain[] it himself from OCME by subpoena or court order.” People v. Lustig, 68 Misc.3d 234, 123 N.Y.S.3d 469 (Sup. Ct. Queens Co. 2020) CONCLUSION Based upon the foregoing, the Defendant=s motion is decided as follows: (1) Those branches of the Defendant’s motion seeking or order suppressing statements he is alleged to have made, the results of a chemical test of his blood, and any other evidence obtained as a result of his allegedly unlawful detention and arrest are granted to the limited extent of directing that a hearing be held addressing the legality of the seizure and arrest of the Defendant, the voluntariness of any statements attributed to the Defendant and the legality of the Defendant’s consent to submit to a chemical test of his blood; (2) That branch of the Defendant’s motion seeking an order compelling the People to produce the raw data files generated by the gas chromatograph used to perform a test of the Defendant’s blood is denied. This constitutes the decision and order of the court. Dated: February 3, 2021
