People v. Karpeles

Decision Date21 December 1989
Citation146 Misc.2d 53,549 N.Y.S.2d 903
PartiesThe PEOPLE of the State of New York v. William KARPELES, Defendant.
CourtNew York City Court
William L. Murphy, Dist. Atty. of Richmond County by Eric Nelson, Asst. Dist. Atty., of counsel, for the People

William T. O'Halloran, Staten Island, for defendant.

MICHAEL D. STALLMAN, Judge:

This defendant's discovery motion requires the Court to determine an issue of first impression under the recodified criminal discovery statute and raises significant constitutional and evidentiary issues. Does a defendant have an absolute right to demand production and independent testing of blood samples taken from his person? Must movant first demonstrate that such samples or test results would be admissible at trial?

BACKGROUND

Defendant is charged with two concurrent counts of Driving While Intoxicated. VTL sec. 1192, subd. 2 (over .10 per centum blood alcohol content) and subd. 3 (common law intoxication). Upon his arrest, defendant Defendant has moved, approximately seven months after the test, for an order directing the People to produce blood samples retained by the Chief Medical Examiner, for independent testing by an unnamed defense expert. In response, the People claim that defendant has not demonstrated the relevancy of retesting a retained blood sample. The People contend that proof of relevancy is a condition precedent to ordering disclosure and testing, and that defendant should be held to have the burden of proof. The People assert that the blood alcohol content of a retained sample may have diminished with the passage of time, thus rendering the sample and any test now performed on it unrepresentative of the defendant's condition at the time of the incident. In sum, if the result would be invalid, and thus inadmissible at trial, discovery and testing would be both futile and unnecessary. Consequently, the People contend that the Court must first determine whether the retained samples have been stored under the same conditions as when first analyzed, and whether blood alcohol content in stored samples significantly changes over the course of time.

                submitted to a blood test.   Toxicological analysis revealed a blood alcohol content of .23 per cent
                
APPLICABLE STATUTES

Prior to the adoption of the current criminal discovery statute in 1980 (CPL Art. 240 as added by L.1979, c. 412), the defense had no clear statutory right to inspection and independent testing of a retained specimen of the defendant's blood. See, former CPL Sec. 240.20, L.1970, c. 996 (McKinney, ed. 1971). The court then had the discretion to order discovery, inter alia, of scientific test reports and any other property upon a showing by the defendant that the items sought were "material" to the preparation of the defense and that the request was otherwise "reasonable". Former CPL Sec. 240.20(3)(a), (b), supra. The old law clearly placed on the moving defendant the burden of demonstrating entitlement to the relief. See Denzer, Practice Commentary to former CPL Sec. 240.20 (McKinney, ed. 1971). The former statute did not specifically mention blood, fluid or tissue specimens recovered from the defendant's body. Indeed, the few cases which granted such discovery did not rest on any statutory or constitutional authority; rather, they appear to have been grounded on the courts' general, supervisory power to assure fair procedure. People v. North, 96 Misc.2d 637, 409 N.Y.S.2d 482 (Amherst Town Court, Erie Cty.) (independent test of blood samples); People v. Inness, 69 Misc.2d 429, 326 N.Y.S.2d 669 (Westchester Cty. Ct.) (test reports); People v. Seaman, 64 Misc.2d 684, 315 N.Y.S.2d 743 (1st Dist.Ct., Suffolk Cty.) (test reports; independent test of remaining sample granted conditionally upon proof that the chemical composition of the sample had not changed).

In contrast, the recodified statute gives the defendant automatic access to a broad range of designated property, upon demand. CPL Sec. 240.20(1), L.1979, c. 412. 1 In order to effect judicial economy and encourage cooperation between counsel Among such property, the statute lists:

                the statute eliminates any requirement that the defendant first seek permission from the court or demonstrate any need or basis.   Moreover, discovery is available whether or not the prosecution intends to use such property or offer it as evidence at trial
                

"(f) Any other property obtained from the defendant or a co-defendant to be tried jointly; [and]

(h) Anything required to be disclosed prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States."

"Property" was specifically redefined to mean:

"[A]ny existing tangible personal or real property, including, but not limited to, books, records, reports, memoranda, papers, photographs, tapes or other electronic recordings, articles of clothing, fingerprints, blood samples, fingernail scrapings or handwriting specimens, but excluding attorneys' work product." CPL Sec. 240.10(3).

The statute recognizes that the court must have an equivalent, broad power to intervene, to appropriately regulate discovery according to the unique circumstances of each case. CPL Sec. 240.50(1) provides as follows:

The court in which the criminal action is pending may, upon motion of either party, or of any affected person, or upon determination of a motion of either party for an order of discovery, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating discovery pursuant to this article for good cause, including constitutional limitations, danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the usefulness of the discovery.

This section essentially codifies the court's customary supervisory authority over evidence, attorneys and litigants, See People v. White, 40 N.Y.2d 797, 799, 390 N.Y.S.2d 405, 358 N.E.2d 1031 (decided before statute adopted; power to craft protective order assumed, without citation or analysis); see also Bellacosa, Practice Commentary to CPL sec. 240.50 at 414 (McKinney ed.). Such discretion must be considered an inherent judicial power. 2 See gen. Langan v. First Trust and Deposit Co., 270 App.Div. 700, 62 N.Y.S.2d 440 (4th Dept.); "Inherent Power," in Evans and Stallman, "Deferred Sentence: Common Law Alternative to Judge's Dilemma," N.Y.L.J. Nov. 24, 1982, p. 6, col. 1.

Thus, the new law effectively established a presumption favoring discovery. As to all of the broad categories itemized in Section 240.20(1), the defense is entitled to disclosure on demand. 3 Access to such material is a clear statutory right enforceable by court-imposed sanctions, either sua sponte or by motion. See CPL secs. 240.70, 240.40(1). There is no requirement that the defendant demonstrate materiality and reasonableness. Rather, the burden is placed on the prosecutor, who must demonstrate that the matter sought is either (1) not designated property under section 240.20 or otherwise not subject to disclosure; or (2) for good cause, ought not to be disclosed. Motion practice is therefore limited to applications by the defendant to compel disclosure, enforce prior orders and impose sanctions, and by the prosecution to applications for protective In light of the broad statutory scheme, the specific inclusion of blood samples in the definition of property makes clear that the Legislature intended that such matter be freely available to the defense. Accordingly, movant is presumptively entitled to the relief sought as a matter of right. The People have the burden of demonstrating that the requested relief should be denied. Given the strong public policy in favor of disclosure and the constitutional considerations discussed infra, that burden is a heavy one.

                orders to limit, stay or condition disclosure.   Only with respect to property not embraced by the broad ambit of section 240.20(1), does there remain a requirement that the defendant first make a showing of materiality and reasonableness.   CPL Section 240.40(1)(c)
                
EVIDENTIARY CONSIDERATIONS

The People seductively argue that testing the remaining blood sample would be pointless unless its relevancy were established. If the test result would not be relevant, it would not be admissible at trial.

"Relevancy" is frequently used to embrace two discrete evidentiary concepts: relevance and materiality. E.g., Fed.R.Evid.Rule 401, Proposed N.Y.Code of Evid. sec. 401, Comment at 44 (McKinney ed. 1982); see, Schmertz, "Relevancy Under Rule 401: A Dual Concept" in Litigation, vol. 14, no. 3 (Spring, 1988) at 12; 1 Weinstein's Evidence, par. 401[01] et seq. In the narrow, traditional sense, evidence is relevant when it has a logical tendency to establish the general proposition for which it is offered. McCormick on Evidence 3d ed. (Cleary, ed.) Sec. 185 (denoting this concept "probative value"); Richardson on Evidence (10th ed., Prince), sec. 4; see also Fisch on New York Evidence, 2d ed., Sec. 3. Evidence is considered material when it tends to prove or disprove the existence of an ultimate fact at issue in the case. Compare McCormick, id.; Richardson id. with Fisch, id.

"Materiality" is also used to denote two different concepts. In addition to its evidentiary meaning, it is used as a term of art in the context of pretrial discovery, in both civil and criminal practice. In the discovery context, property or information is considered material to a party when it is, or may be, significant and useful to proper case preparation. See Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d...

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  • People v. Cortez
    • United States
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    ...... Moreover, where the defense can make a reasonable showing that anything in the prosecution's possession may be potentially favorable to the defense, it can seek its production and the prosecution is obliged to preserve it and make it available for examination. See People v. Karpeles, 146 Misc.2d 53, 549 N.Y.S.2d 903 (Crim.Ct., Richmond Co.) (prosecution required to permit defense expert to independently test defendant's post-arrest blood sample); People v. Cruz, 166 A.D.2d 936, 560 N.Y.S.2d 722 (Crim.Ct., N.Y.Co.) (prosecution required to turn over, for in camera ......
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