People v. Rozenel

• Decision Date: 03 February 2021
• Docket Number: CR-002545-20NA
• Citation: 2021 NY Slip Op 50064 (U)
• Parties: The People of the State of New York, Plaintiff, v. Sean Rozenel, Defendant.
• Court: New York District Court

2021 NY Slip Op 50064(U)

The People of the State of New York, Plaintiff, v. Sean Rozenel, Defendant.

CR-002545-20NA

District Court of Nassau County, First District

Decided on February 3, 2021

Andrew M. Engel, J.

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 NY3d 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 AD3d 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. NY Co. 1993), aff'd 206 AD2d 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 NY2d 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 AD2d 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 AD2d 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 NY2d 189, 192, 630 N.Y.S.2d 693, 695 (1995) See also: People v. Brown, 13 NY3d 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 AD2d 268,...