Dabbs v. Vergari

• Decision Date: 21 November 1990
• Citation: 149 Misc.2d 844,570 N.Y.S.2d 765
• Parties: In the Matter of the Application of Charles DABBS, Petitioner, v. Carl A. VERGARI, District Attorney of Westchester County, Respondent.
• Court: New York Supreme Court

Page 765

570 N.Y.S.2d 765

149 Misc.2d 844

In the Matter of the Application of Charles DABBS, Petitioner, v. Carl A. VERGARI, District Attorney of Westchester County, Respondent.

Supreme Court, Westchester County.

Nov. 21, 1990.

Andrew M. Micek, White Plains, for petitioner.

Carl A. Vergari, Dist. Atty. of Westchester County, pro se.

Joseph M. Latino, Asst. Dist. Atty., White Plains, for respondent.

NICHOLAS COLABELLA, Justice.

In a proceeding pursuant to CPLR article 78, petitioner seeks to compel the respondent District Attorney to permit DNA testing of physical evidence presented at the trial of his criminal action in which he was convicted for Rape in the First Degree (Indictment # 81-367). The Judgment of conviction was affirmed (see, People v. Dabbs, 141 A.D.2d 664, 529 N.Y.S.2d 557) and petitioner is presently serving twelve and one-half to twenty-five years. Petitioner's discovery request is made as a prelude to a possible motion to vacate the conviction pursuant to CPL article 440 based on newly discovered evidence.

The evidence sought for testing consists of semen and other bodily secretions. The prosecution's forensic expert Robert Adamo testified at the criminal trial that he was unable to determine if semen on the victim's panties, a gauze pad and rape test slides belonged to defendant. Blood-grouping tests on stains on a pair of pants worn by the victim were similarly inconclusive in revealing the presence of two blood antigens "B" and "H", of which only the "H" antigen is secreted by defendant. Following trial, the physical evidence was preserved at the Westchester Department of Laboratories and Research. ¹

The DNA analysis petitioner proposes is to be performed by Lifecodes, Inc. and is now generally accepted (see, e.g., People v. Shi Fu Huang, 145 Misc.2d 513, 546 N.Y.S.2d 920; People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985; People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643), but was not available at the time of petitioner's trial in 1984. Petitioner asserts that such testing could yield conclusive evidence of his innocence.

The application is opposed by respondent on the basis that a proceeding under CPLR article 78 to compel lies only when there is a clear legal right to the relief sought. In this case, respondent argues there is no statutory right to the requested discovery after conviction and appeal. Respondent also objects that the application is speculative in that petitioner has failed to show the evidence can still be tested, the likely results of such testing, and whether new bodily fluid would have to be taken from the victim. Finally, respondent urges denial of the application to avoid setting a precedent by which other convicted sex offenders will demand DNA testing.

In reviewing these claims, the Court determines at the outset that the relief sought is improperly brought as a proceeding to compel under CPLR article 78. Respondent's consent to testing is irrelevant since he is not in possession of the physical evidence in issue. ² The Court deems the application to be in the nature of a post-conviction motion for discovery in the criminal action, which, while made on notice to respondent, is addressed to the discretion of the Court.

On the merits, it is well-established that, notwithstanding the absence of a statutory right to post-conviction discovery, a defendant has a constitutional right to be informed of exculpatory information known to the State (see generally, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; People v. Robinson, 133 A.D.2d 859, 520 N.Y.S.2d 415; People v. Lumpkins, 141 Misc.2d 581, 587, 533 N.Y.S.2d 792). This rule devolves from the fundamental right to a fair trial mandated by the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution (United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342; see also, Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40; United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481; Brady, supra 373 U.S. at 86, 83 S.Ct. at 1196), and imposes a constitutional duty on the prosecution to disclose to the defense evidence favorable to the defendant that is material to either guilt or punishment (Bagley, supra 473 U.S. at 674-675, 105 S.Ct. at 3379-80; Brady, supra 373 U.S. at 87, 83 S.Ct. at 1196). The purpose of requiring disclosure is "not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur" (Bagley, supra 473 U.S. at 675, 105 S.Ct. at 3391).

Implicit in the requirement of materiality is a concern that the undisclosed evidence might have affected the outcome of the trial (Agurs, supra 427 U.S. at 104, 96 S.Ct. at 2397). Evidence is material where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome" (Bagley, supra 473 U.S. at 682, 105 S.Ct. at 3383; see also, People v. Chin, 67 N.Y.2d 22, 33, 499 N.Y.S.2d 638, 490 N.E.2d 505). The right to exculpatory evidence extends to evidence which impeaches the credibility of the People's witnesses (Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104; People v. Cwikla, 46 N.Y.2d 434, 414 N.Y.S.2d 102, 386 N.E.2d 1070).

A corollary to the duty of disclosure is the duty to preserve exculpatory material (People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498; People v. Simmons, 36 N.Y.2d 126, 131, 365 N.Y.S.2d 812, 325 N.E.2d 139; United States v. Bryant, (D.C.Cir.1971) 439 F.2d 642, 647; People v. Saddy, 84 A.D.2d 175, 445 N.Y.S.2d 601). Bryant explains:

"(T)he due process requirement (of disclosure) applies to all evidence which 'might have led the jury to entertain a reasonable doubt about [defendants'] guilt' ... (T)his test is to be applied generously to the accused when there is 'substantial room for doubt' as to what effect disclosure might have had.

But in these cases we are entirely in the dark ... If the due process requirement is directed to evidence whose non-disclosure 'might' have harmed the accused, its purpose clearly reaches the type of missing evidence at issue here. Were Brady and its progeny applicable only when the exact content of the non-disclosed materials was known, the disclosure duty would be an empty promise, easily circumvented by suppression of evidence by means of destruction rather than mere failure to reveal. The purpose of the duty is not simply to correct an imbalance of advantage, whereby the prosecution may surprise the defense at trial with new evidence; rather, it is also to make of the trial a search for truth informed by all relevant material, much of which, because of imbalance in investigative resources, will be exclusively in the hands of the Government (439 F.2d at 644)."

Applying the rationale of Bryant in this State, Courts have dismissed indictments after convictions because of destruction or loss of evidence by the police when that police conduct has deprived a defendant of material of high exculpatory potential (e.g. People v. Springer, 122 A.D.2d 87, 90, 504 N.Y.S.2d 232; People v. Pantino, 106 A.D.2d 412, 413, 482 N.Y.S.2d 334; Saddy, supra, 84 A.D.2d at 175, 178-179, 445 N.Y.S.2d 601; People v. McCann, 115 Misc.2d 1025, 455 N.Y.S.2d 212; cf. Lumpkins, supra 141 Misc.2d at 588, 533 N.Y.S.2d 792).

By a parity of reasoning, where evidence has been preserved which has high exculpatory potential, that evidence should be discoverable after conviction. Due Process is not a technical conception with a fixed content unrelated to time, place and circumstances (Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230). It is flexible and calls for such procedural protections as the particular situation demands (Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484). Clearly, an advance in technology may constitute such a change in circumstance (People v. Molina, 121 Misc.2d 483, 493, 468 N.Y.S.2d 551, rev'd on other grounds, 128 Misc.2d 638, 494 N.Y.S.2d 606).

It is undisputed by respondent that, if petitioner were to be tried now, he would be entitled to DNA testing of the physical evidence. The need for testing is analogous to that considered in People v. White, 40 N.Y.2d 797, 390 N.Y.S.2d 405, 358 N.E.2d 1031, where the evidence in issue was a controlled substance. The Court of Appeals reasoned that "(d)efendant's guilt or innocence hung exclusively on the nature and amount of the substance in question; he advanced no other theory of defense. For refutation of the charge against him, there was no acceptable alternative to scientific testing by experts of his choice" (40 N.Y.2d at 798, 390 N.Y.S.2d 405, 358 N.E.2d 1031; see also, People v. Green, 123 Misc.2d 648, 474 N.Y.S.2d 171).

Similarly, in this case, while it is unclear what such testing will ultimately reveal, petitioner has demonstrated an adequate foundation for the testing by showing that...