Opinion
1643/19
03-31-2021
The PEOPLE of the State of New York, Plaintiff, v. Tyee FISHER, Defendant.
For the People: Assistant District Attorney Molly Martin, Bronx County District Attorney's Office, 198 E. 161st Street, Bronx, NY 10451 For defendant: Elli Marcus, The Bronx Defenders, 360 E. 161st Street, Bronx, NY, 10451
For the People: Assistant District Attorney Molly Martin, Bronx County District Attorney's Office, 198 E. 161st Street, Bronx, NY 10451
For defendant: Elli Marcus, The Bronx Defenders, 360 E. 161st Street, Bronx, NY, 10451
Martin Marcus, J.
The People move for an order compelling the taking of a saliva sample from the defendant for the purpose of DNA analysis. The defendant opposes the People's motion, and moves for a protective order, which the People oppose. For the reasons set forth below, both motions are granted.
Timeliness
The defendant argues that the People's motion was not properly filed on November 1, 2019, when it was stamped "received" by Supreme Court, Bronx County, because it was served on the wrong address. Relying on CPL § 245.10, and referencing the now-repealed CPL § 240.90, the defendant argues the People's motion is untimely. The defendant interprets the Legislature's removal of the 45-day time limit for the People to file a motion to compel to mean that the Legislature intended such motions to be governed by the new discovery obligations contained in CPL § 245. Noting that "C.P.L. § 245 requires the prosecution to promptly turn over materials in its possession and in good faith ascertain the existence of any and all discoverable materials" he argues that the "results of DNA testing performed by the OCME, including the comparison of a defendant's DNA to DNA recovered from the scene of a crime, fall squarely within the discovery disclosures required by C.P.L. 245.20." Thus, he claims, CPL § 245.70(2) requires the People to show good cause for their delay in serving the motion.
The defendant insists that the People have not acted diligently and with good faith to ascertain the existence of DNA evidence and make it available to the defense and have failed to show good cause for the delay. See CPL §§ 245.20(2) ; 245.70(2). The defendant argues that the People's lack of good cause is demonstrated by their service of the motion on him at the wrong address, by their failure to serve the motion on him until December 22, 2010 even though the People were made aware in May 2020 that he did not have it, and by their failure to mention the pending motion in their communications with defense counsel or during any court appearances prior to May 2020. The defendant also notes the pending motion was not mentioned in the People's Certificates of Compliance, Statements of Readiness, Automatic Disclosure Forms, or in any other court filings.
The People maintain that while they inadvertently listed the wrong address for defense counsel on the motion, it was nonetheless properly filed with the Court on November 1, 2019 and was therefore timely under CPL § 240.90. The People point out that the defendant was made aware of the motion in May 2020, but that as a result of the pandemic, neither the Court nor the People were able to locate the stamped copy of the motion until late 2020, and that the People scanned and emailed the motion to defense counsel on December 22, 2020. The People argue that even if this Court finds they improperly filed their motion, because CPL § 245.40 eliminated any timeframe for filing motions to compel, they could refile it now and be compliant with the plain language of the statute. The People contend that the defendant is improperly conflating the new rules governing motion practice with those governing discovery.
In enacting CPL § 245.40, the Legislature abandoned the 45-day time limit in CPL § 240.90, and the new statute does not contain any time limit within which a motion to compel must be made. The defendant's interpretation of CPL §§ 245.20 and 245.40 is strained and contrary to the plain language of both statutory provisions. While CPL § 245.20(1)(j) requires the People to turn over "[a]ll reports, documents, records, data, calculations or writings" concerning scientific tests, no provision of the new discovery law requires the People to generate discovery material that does not already exist in order to satisfy CPL Article 245. Indeed, CPL § 245.20(j) explicitly states that the People "shall not be required to provide information related to the results of ... scientific tests or experiments or comparisons, unless and until such examinations, test, experiments, or comparisons have been completed." While there was a significant delay between the filing of the People's motion and service upon the defendant, in light of the elimination of the 45-day time period in CPL § 245.40, the Court declines to reject the People's motion based upon the defendant's timeliness objection.
Even analyzing timeliness under the old statute, I reject the defendant's argument. The People in good faith believed they had properly filed their motion on November 1, 2019 and were not made aware until May 2020 that due to the service error the defendant had not received it. In March 2020, New York State Courts closed due to the pandemic, and court records indicate the first appearance thereafter was on August 14, 2020. During the September 10, 2020 appearance, the People informed the Court that a motion to compel had been filed, and the Court directed the People to send a stamped copy of the motion to defense counsel and the Court, which, through no fault of the prosecution, was also not in possession of the motion. The People state that because of the pandemic, they were unable to locate the stamped copy of the motion "until late 2020." In accordance with the Court's directive, the People then scanned and emailed a copy of the stamped motion to defense counsel on December 22, 2020. The defendant has pointed to no prejudice he has suffered as a result of the delay in receipt of the motion, nor has he alleged any delay in the progression of the case occasioned by it. Accordingly, I find that even if former CPL § 240.90 were applicable, to the extent the People's motion was not timely filed, good cause for the delay would have been established.
That the Court was not in possession of the motion was the apparent result, not only of the general disruption to normal court operations caused by the pandemic, but to the fact that this case has been before four different judges during the motion's pendency.
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DNA Motion
The defendant is charged with Criminal Possession of Weapon in the Second Degree and related offenses for incidents allegedly occurring on July 13, 2019 in Bronx County. Relying on Matter of Abe A. , 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), the People contend they have satisfied the requirements to obtain the defendant's saliva sample. The People argue that probable cause exists "to believe that the defendant committed the crimes charged in the indictment" by virtue of "the fact that the Grand Jury has indicted the defendant for those offenses." The People state that police officers recovered "a .380 Ruger pistol from [the defendant's] custody and control in that it was recovered from the ground in the vicinity of East 180th Street and Boston Road ... where police officers observed [the defendant] throw said pistol from his person to the ground." Members of the New York City Police Department's Evidence Collection Team took DNA swabs from the pistol, vouchered the swabs and submitted them to the Office of the Chief Medical Examiner ("OCME"), Forensic Biology Department for testing and analysis. An October 3, 2019 OCME report under FB19-05341 indicates the swabs of the "trigger/trigger guard" (swab 1) and "front/back straps and side grips" (swab 2) each contain a DNA profile from Male Donor A that makes up 95% of the DNA mixture and the swabs of the "slide grip grooves/release" (swab 3) contains a DNA profile for which a contributor could not be determined, but that is suitable for comparison. See OCME report appended to the People's motion.
The People argue that based upon the OCME laboratory analysis and a review of OCME's evidence manual, further testing is necessary to conclusively include or exclude the defendant as a source of the DNA obtained from the pistol. They further argue that there is a clear indication that relevant material will be found as a result of comparing the defendant's DNA to that found on the pistol because it would provide further relevant evidence of his possession of the pistol. The People also argue that the method of collection does not involve an unreasonable bodily intrusion or cause serious physical injury.
The defendant argues that the People have failed to demonstrate a clear indication that material, probative evidence will be found or that his DNA profile will have probative worth to the investigation. The defendant notes that two firearms were recovered on the day of the incident and were apparently processed together, and that without specifying where each firearm was recovered, the People state he is only being charged with possessing one of the firearms. Nonetheless, the defendant says, the DNA profile of Male Donor A from the "trigger/trigger guard" is a match to Male Donor A from a case "the prosecution has deemed ‘unrelated’ " to the instant case. In the alternative, the defendant requests the Court hold the motion in abeyance pending the outcome of his motion to suppress the physical evidence.
The defendant's arguments in opposition to the People's motion are unavailing. The People's request satisfies the requirements of CPL § 245.40 and Matter of Abe. A. , 56 N.Y.2d at 288, 452 N.Y.S.2d 6, 437 N.E.2d 265. The defendant has been indicted by a grand jury, which found that there was probable cause to believe that he committed the crimes with which he is charged. Moreover, upon inspecting the minutes of the grand jury presentation, the Honorable Guy H. Mitchell, Acting Justice of the Supreme Court, found it sufficient in all respects. DNA profiles suitable for comparison were found on the firearm. Given that the People have established that the profile of Male Donor A was obtained from swabs taken from the gun that officers saw the defendant throw to the ground, the fact that the profile for Male Donor A matched a profile developed from forensic evidence gathered in what the People describe as "an unrelated and ongoing investigation" does not alter the conclusion that there is a "clear indication" that material relevant to this case will be found through DNA analysis. Finally, there is no doubt that a routine cheek swab is a "safe and reliable" method of obtaining the defendant's DNA sample. Matter of Abe A. 56 N.Y.2d at 288, 452 N.Y.S.2d 6, 437 N.E.2d 265.
The defendant's request to hold the People's motion in abeyance pending the suppression hearing on the firearm is denied. Delaying this decision until his suppression motion is resolved would result in unnecessary and possibly protracted delay, especially with New York State Courts reopening for in-person matters. Whatever the result of the suppression hearing, if the People's motion were thereafter granted, the trial which could otherwise follow would have to be postponed until the swab taken from the defendant was tested and the resulting profile was compared with the forensic samples.
Protective Order Motion
The defendant filed a cross-motion for a protective order limiting the comparison of his DNA to this case and prohibiting its inclusion in OCME's local DNA Database. The People oppose the defendant's motion.
In its May 28, 2019 decision, In re Samy F. v. Fabrizio , 174 A.D.3d 7, 103 N.Y.S.3d 428, 2019 NY Slip Op. 04120 (1st Dept. 2019), the First Department explicitly rejected the argument advanced by the People that Executive Law 49-B "excludes [ ] local DNA laborator[ies] like the one operated by OCME," and held that "OCME's responsibilities in testing, analyzing and retaining DNA is subject to the State Executive Law." Citing specifically to Executive Law § 995-d, the Court noted that the "Executive Law also ensures that all forensic DNA laboratories comply with any applicable privacy laws, and adhere to restrictions on the disclosure or re-disclosure of DNA records, findings, reports and results" and that "DNA testing records, findings, and reports ‘shall be confidential,’ with certain exceptions."
Accordingly, the defendant's cross motion for a protective order is granted, and the use of the results of the defendant's DNA may only be compared to the evidence in this case, specifically, the evidence assigned to laboratory numbers FB19-05341.
This constitutes the decision and order of the Court.