Opinion
2013-05-6
The PEOPLE of the State of New York v. Leonard GILL, Defendant.
Office of the District Attorney, Kings County, Charles J. Hynes (ADA Nancy Tosson), for the People. Sharon Weintraub Dashow, Esq., for defendant.
Office of the District Attorney, Kings County, Charles J. Hynes (ADA Nancy Tosson), for the People. Sharon Weintraub Dashow, Esq., for defendant.
DENA E. DOUGLAS, J.
Defendant Leonard Gill is charged with criminal possession of marihuana in the fifth degree (PL 221.10) and unlawful possession of marihuana (PL 221.05). Defendant moves as an indigent person to have the People carry out DNA testing of a marihuana cigarette that was alleged by the Arresting Officer as seen in defendant's mouth, on the theory that should defendant's DNA not be present on the cigarette it would provide exculpatory evidence to support defendant's claim of innocence. The People have not opposed defendant's motion.
For the People: Office of the District Attorney, Kings County, Charles J. Hynes (ADA Nancy Tosson). For the Defendant: Sharon Weintraub Dashow. Law Clerk: P. Anne Taylor.
A basic tenant of our legal system is that “[i]t is abhorrent to our sense of justice and fair play to countenance the possibility that someone innocent of a crime may be incarcerated or otherwise punished for a crime which he or she did not commit” ( People v. Tankleff, 49 A.D.3d 160, 177, 848 N.Y.S.2d 286 [2d Dep't 2007] ). Indeed, “[t]he greatest crime of all in a civilized society is an unjust conviction ...” ( People v. Ramos, 201 A.D.2d 78, 90, 614 N.Y.S.2d 977 [1st Dep't 1994] ).
Two issues arise here, however, that need to be addressed:
1) Do defendant's rights as an indigent person include entitlement to DNA analysis upon demand?
2) Because exculpatory evidence might be present, are the People required to perform a DNA analysis that they might otherwise find unnecessary?
DEFENDANT'S RIGHTS
Gideon v. Wainwright guaranteed the most basic of right of an indigent defendant: the right to representation by counsel. (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963];People v. Margan, 157 A.D.2d 64, 554 N.Y.S.2d 676 [Second Dep't, 1990];People v. Smith, 243 A.D.2d 738, 663 N.Y.S.2d 647 [Second Dep't, 1997] ). Since that time indigent defendants have been found eligible for other entitlements: a constitutional right to a free copy of the minutes of a prior trial or of proceedings before the Grand Jury ( People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103 [1967] ), a free copy of the transcript of a preliminary suppression hearing ( People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730 [1966];People v. West, 29 N.Y.2d 728, 326 N.Y.S.2d 388, 276 N.E.2d 226 [1979] ), and the right to receive any and all exculpatory material that the People may have in their possession ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1964] ).
The rights of an indigent defendant are not, however, unlimited. Although an indigent defendant is entitled to a transcript of his/her trial, s/he is not entitled to daily minutes ( People v. Abdullah, 23 N.Y.2d 676, 295 N.Y.S.2d 928, 243 N.E.2d 147 [1968] ). In People v. Jones, 234 A.D.2d 16, 650 N.Y.S.2d 642 [First Dep't, 1996], the trial court properly denied an indigent defendant's mid-trial request for a transcript of earlier trial testimony on the ground that the testimony could easily have been read back. Indeed, the defendant is not entitled to a free transcript of trial minutes at all unless a Notice of Appeal has been filed. People v. Rivera, 60 Misc.2d 414, 303 N.Y.S.2d 1 (County Ct., Monroe Co., 1969); People v. Griffin, 62 Misc.2d 941, 310 N.Y.S.2d 263 (County Ct., Onondaga Co., 1970). See also Coleman v. Denno, 205 F.Supp. 510 (Southern Dist., N.Y., 1965) (indigent defendant was denied writ of habeas corpus or the assignment of counsel where volunteer attorneys were ably assisting him).
DNA testing procedures are described and defined in Executive Law § 995. Executive Law 995(1) and 995(2) were enacted concomitantly with CPL § 440.30(1–a). They narrowly circumscribe defendant's right to request by post-conviction motion that forensic testing be done by the state or a unit of local government if such tests are otherwise regularly performed by them. People v. Chichester, 162 Misc.2d 658, 618 N.Y.S.2d 201 (County Ct., Suffolk County, 1994); Washpon v. N.Y. State District Attorney, Kings County, 164 Misc.2d 991, 625 N.Y.S.2d 874 (Kings Co., 1995). These sections are silent as to testing during pre-trial. Nothing in the Executive Law or CPL Section 440.30 has been construed to create or impose an affirmative obligation upon laboratories, police departments, district attorneys, or any other law enforcement agencies or personnel regarding the pre-trial performance of DNA testing.
We find therefore, that nowhere is there an obligation for the State or local government to carry out pre-trial forensic testing at the behest of an indigent defendant. We decline to provide that right to this defendant. Defendant's request is preserved, however, and may be considered on appeal or in conjunction with any post-conviction motion.
PEOPLE'S DUTY TO PERFORM PRE–TRIAL DNA TESTING
The People unquestionably have a duty to disclose exculpatory material in their possession ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1973] )but they also have a right to develop and present such evidence to the trier of fact as they see fit in order to make their case. Nor is evidence exculpatory before it exists—in other words, the People cannot be held to have committed a Brady violation where the possible exculpatory evidence has not been created and is therefore not in their possession.
A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused or where there is a “reasonable probability” that a different verdict would have resulted from disclosure of the information that the defendant claims was suppressed ( US v. Rodriguez, 496 F.3d 221 at n. 4 (2007)). The objectives of fairness to the defendant, as well as the legal system's objective of convicting the guilty rather than the innocent, require that the prosecution make the defense aware of material information potentially leading to admissible evidence favorable to the defense. Rodriguez, ibid. Here, however, defendant is already aware of the existence of the marihuana cigarette that might contain potentially exculpatory evidence but seeks to compel the People to go on a fishing expedition to determine whether his DNA is present whereas the People's position may be that DNA testing is unnecessary for the prosecution of their case. See People v. Vasquez, 12 Misc.3d 1163(A), 2006 WL 1518817 (Sup. Ct., Bronx Co., 2006)
Accordingly, at this time no Brady violation occurred.
At the present time it is unreasonable to compel the People to carry out testing that they might voluntarily undertake. We remind the People that should the test be carried out they are required by Brady to share the results with defendant.
Defendant's motion to compel the People to carry out pre-trial DNA testing is denied.