Washpon v. New York State Dist. Atty., Kings County

• Citation: 164 Misc.2d 991,625 N.Y.S.2d 874
• Parties: In the Matter of Samuel WASHPON, Petitioner, v. NEW YORK STATE DISTRICT ATTORNEY, KINGS COUNTY, Respondent.
• Decision Date: 13 March 1995
• Court: United States State Supreme Court (New York)

Page 874

625 N.Y.S.2d 874

164 Misc.2d 991

In the Matter of Samuel WASHPON, Petitioner, v. NEW YORK STATE DISTRICT ATTORNEY, KINGS COUNTY, Respondent.

Supreme Court, Kings County,

IAS Part 8.

March 13, 1995.

Samuel Washpon, petitioner, pro se.

Charles J. Hynes, District Attorney of Kings County, pro se, and Jodi A. Catalano for Charles J. Hynes, respondent.

JULIUS VINIK, Justice.

Defendant Samuel Washpon instituted a CPLR Article 78 proceeding against the Kings County District Attorney to compel blood group and DNA testing of the semen found on the jumpsuit and vaginal swab of a 1984 rape victim. As a CPLR article 78 proceeding is the incorrect section (see, Matter of Gold v. Gartenstein, 54 N.Y.2d 627, 442 N.Y.S.2d 504, 425 N.E.2d 892), the court converted the proceeding to a motion to vacate judgment under CPL article 440. Both parties have been given an opportunity to address arguments under CPL article 440.

Defendant was convicted by a jury of Rape in the First Degree on August 23, 1985, based upon a complaint filed against him by his cousin, Renee Dunbar. Complainant claimed that in the morning hours of August 13, 1984, after a night spent partying at various social clubs, she had requested defendant to give her a ride home. Instead, she alleged that he drove her to a secluded spot and raped her. During the attack she claimed to have been cut on the left jaw with a knife.

At trial, the prosecution introduced into evidence the "rape kit" made at the hospital following the attack, which included vaginal swabs taken from the victim. Also introduced into evidence were a photograph showing complainant's sutured wound and the complainant's jumpsuit worn that evening. Expert testimony was also introduced that the stains on the jumpsuit and on the vaginal swabs were semen. The semen was never scientifically connected to defendant.

Defense counsel brought out that there was no blood in the car or on the knife. However, defendant did not testify at trial. He denied having sex with complainant or cutting her with a knife, but his version of events was never admitted into evidence.

Defendant was convicted and later sentenced as a persistent felony offender to imprisonment for 15 years to life. The judgment was affirmed by the Appellate Division, Second Department, on November 9, 1987 (People v. Washpon, 134 A.D.2d 384, 520 N.Y.S.2d 862), and leave to appeal to the Court of Appeals was denied on November 29, 1988 (People v. Washpon, 73 N.Y.2d 791, 536 N.Y.S.2d 751, 533 N.E.2d 681).

Defendant filed CPL article 440 motions to vacate the judgment in December 1986, January 1988, and March 1990, on the grounds, among others, of ineffective assistance of counsel, prosecutorial misrepresentation in the Huntley hearing and trial, and errors in the prosecutor's summation. All the motions were denied.

Defendant also petitioned several times for a Federal writ of habeas corpus. These petitions were also denied.

Defendant now moves pro se to compel blood-group and DNA testing of the semen stains on the victim's clothing and the vaginal swab, to determine whether they match his blood type and genetic profile. He also wants an analysis made of the photograph of the victim introduced in evidence, claiming that the photo was "manufactured". He also alleges that the improper summation by the prosecution unfairly influenced the verdict. Finally, he contests determination of his status as a persistent felony offender on the basis of prior convictions.

In converting this motion from an Article 78 proceeding to a CPL article 440 motion, the court gave defendant the opportunity to address the various procedural bars to such a motion. Defendant has failed to address these issues. Nevertheless, the court will address one of the substantive issues raised by the motion.

In moving for DNA testing of the evidence at this stage, defendant is requesting new discovery at a post-conviction juncture. However, discovery in a criminal proceeding is entirely governed by statute (People v. Copicotto, 50 N.Y.2d 222, 225, 428 N.Y.S.2d 649, 406 N.E.2d 465; CPL art. 240). There is no statutory basis for post-conviction discovery (People v. Brown, 162 Misc.2d 555, 618 N.Y.S.2d 188; People v. Callace, 151 Misc.2d 464, 573 N.Y.S.2d 137). If there be no statutory basis, the court has no power to order discovery on its own (see, Matter of Hynes v. Cirigliano, 180 A.D.2d 659, 579 N.Y.S.2d 171; People v. Mitchell, 201 A.D.2d 507, 607 N.Y.S.2d 417).

Ordering the testing through the inherent powers of the court in the interests of justice is equally problematic. There is no constitutional right to discovery (Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507). Even where the material desired is exculpatory in nature, there exists no discovery right (Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845-46, 51 L.Ed.2d 30). Absent statutory authority, there is simply no entitlement to request discovery in a post-conviction framework.

However, post-conviction forensic DNA testing has recently been authorized by statute by CPL 440.30(1-a). This clause was enacted in 1994 (effective Aug. 2, 1994) to provide for such testing in cases where the test had not been available before conviction. It provides for DNA testing where the evidence is still in existence and available for testing, and provided there exists a "reasonable probability" that the results of the test could have led to a more favorable verdict to the defendant.

The only case to interpret the new statute is People v. Chichester, 162 Misc.2d 658, 618 N.Y.S.2d 201 (Oct. 20, 1994). That court noted that concomitantly with CPL 440.30(1-a) the Legislature enacted a new Executive Law article 49-B. The Executive Law defines forensic DNA laboratories as laboratories operated by the State or locality which perform DNA testing in the course of their business. Reasoning from this, it was held that

"[t]hese new sections provide a narrowly circumscribed defendant's right to request forensic testing to be done by the State or a unit of local government if such tests are otherwise regularly performed by them. They are silent as to testing to be done on materials held by law enforcement authorities which a defendant may wish to analyze at his or her own expense" (People v. Chichester, supra, 162 Misc.2d, at 660, 618 N.Y.S.2d 201).

The result of this analysis is the conclusion that "[t]here is no provision in any of the newly enacted legislation that in any way relates to DNA testing done at private expense by a private laboratory" (id.). The legislation thus empowers the courts to order DNA testing by State- or locally-run laboratories under the appropriate circumstances, and never deals with the possibility of private testing.

In examining this reading of the clause, it is worthwhile to bring the language of the statutory addition in full:

1-a. In cases of convictions occurring before January first, nineteen hundred ninety-six, where the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.

The new Executive Law article 49-B sets up a commission on forensic science (Executive Law § 995-a[1], with a DNA subcommittee (Executive Law § 995-b[13], which will accredit forensic laboratories, including forensic DNA laboratories, to ensure they meet high scientific standards of operation (Executive Law § 995-b[1], [2] and [2-a]. It defines "forensic laboratory" (Executive Law § 995[1] and "forensic DNA laboratory" (Executive Law § 995[2]--for the purposes of the article (Executive Law § 995), i.e., article 49-B--as laboratories operated by the State or a local unit of government. The new CPL 440.30(1-a), although enacted in the same bill, is not part of the Executive Law article and, in any case, does not make mention of "forensic DNA laboratory," only of "forensic DNA testing" of evidence. The words in the Executive Law, when used in this article, indicate that it does not apply to the Criminal Procedure Law (see, People v. McNamara, 78 N.Y.2d 626, 630, 578 N.Y.S.2d 476, 585 N.E.2d 788; People v. Neumann, 51 N.Y.2d 658, 665, 435 N.Y.S.2d 956, 417 N.E.2d 69).

The intent of the new CPL 440.30(1-a) is to provide an immediate means for DNA testing of evidence before State- and locally-run laboratories receive accreditation from the newly created commission. This is clear from the provision that State and local laboratories need not be accredited before January 1, 1996 (McKinney's Session Law News of N.Y., L.1994, Ch. 737, § 3), whereas CPL 440.30(1-a) provides for DNA testing for convictions before January 1, 1996, the date of accreditation. CPL 440.30(1-a) refers to testing by motion of the defendant, not by the State; as such, subdivision (1-a) must and does envision private testing, since it is by defendant's motion and before accreditation. It is silent as to which laboratories to use because any DNA-testing laboratory that meets the court's approval will be acceptable until the State accreditation system is in place.

That this is the intent of the new law, and not as understood in People v. Chichester, can be seen by the cutoff date of the CPL provision: January 1, 1996. This matches the date upon which State and local laboratories are to be in compliance with accreditation standards (L.1994, ch. 737, § 3). Once accredited State and local DNA-testing laboratories are in place, there will no longer be any need to provide for...