People v. Preston

• Decision Date: 16 October 2020
• Docket Number: CR-2226-19
• Citation: 135 N.Y.S.3d 587,70 Misc.3d 355
• Parties: PEOPLE of the State of New York v. Gary S. PRESTON
• Court: New York City Court

70 Misc.3d 355

135 N.Y.S.3d 587

PEOPLE of the State of New York

v.Gary S. PRESTON

CR-2226-19

City Court, New York, County of Albany.

Decided October 16, 2020

P. David Soares, Albany County District Attorney (Cheryl Flower, Esq. of counsel) for the People.

Nave Law Firm (Derek S. Andrews, Esq. of counsel) for the Defendant.

Thomas Marcelle, J.

On November 3, 2019, the Cohoes Police received a call that a Dodge Dakota pickup truck had hit a vehicle on Columbia Street and then fled the scene. An officer responded and observed a pickup matching the description of the fleeing vehicle driving on a nearby street. Accordingly, he stopped the pickup truck—the defendant Gary S. Preston was driving. When the officer approached Preston to ask for identification, he smelled liquor emanating from Preston. Upon being questioned about the accident, Preston admitted to his involvement. Further, he acknowledged to having had four beers at a nearby bar. In light of the accident, the odor of alcohol and the admission to have been drinking, the officer requested that Preston take a blood alcohol content ("BAC") test—Preston refused. After refusing to take the test, Preston was arrested, and his truck was towed.

While being booked at the police station, Preston was advised of the consequences of his refusal to take a BAC test. Preston changed his mind and took the test—which he flunked. The breathalyzer test indicated that Preston's BAC was .19. As a result, he was charged with, among other things, violating Vehicle and Traffic Law § 1192(3).

After arraignment, the criminal process began to run its course which included mandatory disclosures. Pursuant to CPL 245.20, the prosecution provided automatic discovery. On the same date as the disclosures, the prosecutor filed her certificate of compliance and a statement of readiness for trial. Preston was dissatisfied with the disclosure. In particular, Preston argued that the Datamaster DMT subject test graph printout and raw data were discoverable materials because the materials were, although possessed and maintained by the Division of Criminal Justice Services ("DCJS"), records and data "relating to the criminal action or proceeding which were made by a public servant engaged in law enforcement activity" ( CPL 245.20[1][j] ).

The question in this case centers on the scope of discovery, specifically the prosecution's discovery obligations under the recently passed CPL 245. One of the effects of this new law was that it "significantly broadened the scope of the prosecution's discovery obligation" ( People v. Lustig , 68 Misc. 3d 234, 238, 123 N.Y.S.3d 469 [Sup. Ct., Queens County 2020] ). In a significant change from its predecessor, CPL 245.20(1) lists several categories of items that are to be disclosed ( Id. ) However, disclosure is not limited to items contained within these categories and thus incumbers the prosecution with a greater discovery burden ( Id. ) In the event that there is a conflict over the disclosure of certain materials, the new law explicitly states that there is a presumption in favor of disclosure when interpreting the prosecution's discovery obligations ( Id. )

Against this backdrop, Preston argues that the prosecution is required to turn over the records and data related to his breathalyzer test held by DCJS. Moreover, he contends that since the records were not provided as part of statutory discovery, the prosecution's certificate of compliance is defective.

The prosecution concedes that the requested material is the type of material which it is mandated to provide the defendant. However, the prosecution claims that this material is not within its possession or control. Since there is no dispute over whether the material is discoverable, the sole question is whether DCJS is an agency engaged in law enforcement activity ( CPL 245.20[1][j] ).¹

The defense says that DCJS is engaged in law enforcement activity. This position is fortified by case law directly dealing with DCJS—although in a different statutory context. The Court of Appeals has examined the law enforcement agency exception contained in CPL 160.50(1)(d)(ii) ( Katherine B. v. Cataldo , 5 N.Y.3d 196, 800 N.Y.S.2d 363, 833 N.E.2d 698 [2005] ). While the term law enforcement agency is not mentioned in CPL 160.50, it "always appears in conjunction with the terms ‘police department’ and/or ‘the division of criminal justice services’ " ( Id. ) Thus, the Court of Appeals concluded that DCJS falls within the definition of a law enforcement agency in CPL 160.50(1)(d)(ii) (Id. ) ; (accord People v. Anonymous , 34 N.Y.3d 631, 639, 123 N.Y.S.3d 41, 145 N.E.3d 924 [2020] ). However, Cataldo rests on a statutory history peculiar to CPL 160. CPL 245 is a different statute with a different history, context and language than CPL 160. Moreover, CPL 245 has no legislative history that connects DCJS to the term law enforcement. Thus, Cataldo's applicability to CPL 245 is quite limited.

On the other hand, the prosecution maintains that DCJS is not engaged in law enforcement activity. In support of this position, it cites a case involving whether an audiotape made by the office of the chief medical examiner (OCME) was Rosario material. The Court of Appeals resolved the case by noting that a Rosario obligation does not arise where the prosecution lacks control over the items in question and the entity in possession of them is not a law enforcement agency ( People v. Washington, 86 N.Y.2d 189, 630 N.Y.S.2d 693, 654 N.E.2d 967 [1995] ). The Court concluded that since OCME's role was to provide an impartial determination of the cause and manner of death, it was not a law enforcement agency under the control of the prosecutor ( Id. at 193, 630 N.Y.S.2d 693, 654 N.E.2d 967 ). Washington is persuasive by analogy.²

The strength of the analogy rests primarily upon the relationship between Rosario material and CPL 245. The holding of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961] ) was codified in CPL 240.45(1)(a). That statute required prosecutors to disclose to the defense (1) "[a]ny written or recorded statement," (2) "made by a person whom the prosecutor intends to call as a witness at trial," and (3) "which relates to the subject matter of the witness's testimony" ( CPL 240.45 [1][a] ). While CPL 240.45(1)(a) speaks of "[a]ny written or recorded statement," its scope has been judicially interpreted as limited to circumstances where the trial prosecutor actually has possession or control of the requested materials subject to the Rosario rule ( People v. Kelly , 88 N.Y.2d 248, 251–52, 644 N.Y.S.2d 475, 666 N.E.2d 1348 [1996] ).

The prosecution's duty under Rosario is close kin but not identical to its duty imposed under CPL 245. Indeed, in replacing CPL 240 with CPL 245, the legislature significantly broadened the prosecution's discovery obligations ( Lustig , 68 Misc 3d at 236-37, 123 N.Y.S.3d 469 ). Rosario disclosure focuses on the prosecution's control of material or control over the agency in possession of the material. In contrast, CPL 245 speaks to the origin of the material being from a public servant and not whether the prosecution controls the public servant or the material. This much is certain from CPL 245's language, its discovery mandate extends beyond a law enforcement agency to include any public servant engaged in law enforcement activity.

The recognition of CPL 245's expanse diminishes the transitive authority of Washington . It is true that OCME's role is to provide an impartial determination of the manner of death, which is exactly why it is not a law enforcement agency. But, defendant's point (and a correct one) is that there is a difference between a law enforcement agency and law enforcement activity. OMCE collects facts and makes a judgement on those facts to determine if the manner of death...