People v. Preston, CR-2226-19

CourtNew York City Court
Writing for the CourtThomas Marcelle, J.
Citation135 N.Y.S.3d 587,70 Misc.3d 355
Parties PEOPLE of the State of New York v. Gary S. PRESTON
Docket NumberCR-2226-19
Decision Date16 October 2020

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


135 N.Y.S.3d 588

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.

70 Misc.3d 356

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] ).

70 Misc.3d 357

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" (

135 N.Y.S.3d 589

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...

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2 practice notes
  • People v. Beaupre, 2021-32604
    • United States
    • New York City Court
    • 28 Octubre 2021
    ...possession or control or that of any "public servant engaged in law enforcement activity" (CPL §245.20[l][j]; see People v. Preston, 70 Misc.3d 355 [Cohoes City Court 2020]). Therefore, the Court is compelled to conclude that (1) the information is in the People's possession as that is defi......
  • People v. Beaupre, Index 1004-21
    • United States
    • New York City Court
    • 28 Octubre 2021
    ...possession or control or that of any "public servant engaged in law enforcement activity" (CPL §245.20[l][j]; see People v. Preston, 70 Misc.3d 355 [Cohoes City Court 2020]). Therefore, the Court is compelled to conclude that (1) the information is in the People's possession as that is defi......
2 cases
  • People v. Beaupre, 2021-32604
    • United States
    • New York City Court
    • 28 Octubre 2021
    ...possession or control or that of any "public servant engaged in law enforcement activity" (CPL §245.20[l][j]; see People v. Preston, 70 Misc.3d 355 [Cohoes City Court 2020]). Therefore, the Court is compelled to conclude that (1) the information is in the People's possession as that is defi......
  • People v. Beaupre, Index 1004-21
    • United States
    • New York City Court
    • 28 Octubre 2021
    ...possession or control or that of any "public servant engaged in law enforcement activity" (CPL §245.20[l][j]; see People v. Preston, 70 Misc.3d 355 [Cohoes City Court 2020]). Therefore, the Court is compelled to conclude that (1) the information is in the People's possession as that is defi......

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