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The PEOPLE of the State of New York, Appellee, v. Shannon TAYLOR, Defendant/Appellant.
DECISION AND ORDER
On appeal from a guilty plea before Hon. Joseph A. Saba, Jr. (Utica City Court), on July 26, 2022 for Driving While Intoxicated, defendant contended that the lower court erred in denying her suppression motion and failing to hold a fact-finding hearing to determine whether the electronic data obtained from the analysis of her breath sample was discoverable relative to the People's obligations under CPL Article 245.
Defendant initially raised three arguments on appeal: whether Officer Ambrose's entry into the defendant's vehicle was a search which required a warrant, or was this act of opening her vehicle door an exception to the warrant requirement, and whether the lower court erred in failing to hold a fact-finding hearing to determine whether the electronic data obtained from the analysis of the defendant's breath sample was discoverable.
In March 2023, this Court held the case, reserved decision and remitted the matter to Utica City Court to hold a hearing and issue a written decision with specific findings of fact and conclusions of law relative to defendant's discovery motion and validity of the certificate of compliance.
Thereafter, in May 2023,1 the lower court issued a decision which found, inter alia, that the raw data from the DataMaster was not in the possession of the People, under the confines of CPL Article 245, and their Certificate of Compliance (COC) was not illusory.
After remand, defendant argued that the lower court's May 2023 decision was based on several fundamental errors which require reversal, that her motion declaring the COC invalid be granted, that her conviction be vacated and that the case be remanded to the lower court for further proceedings before a different judge.
“It is well settled that the suppression court's credibility determinations and choice between conflicting inferences to be drawn from the proof are granted deference and will not be disturbed unless unsupported by the record” (People v. Esquerdo, 71 AD3d 1424, 1424 [4th Dept. 2010], lv. denied 14 NY3d 887  [internal quotation marks and citation omitted]) “and its findings should not be disturbed unless clearly erroneous” (People v. Stokes, 212 AD2d 986, 987 [4th Dept. 1995], app. denied 86 NY2d 741 ).
“[M]uch weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” (People v. Prochilo, 41 NY2d 759, 761 ).
Upon a review of the record, the evidence at the suppression hearing established that the police officers had an objective, credible reason to approach defendant's parked vehicle, which was located in a parking lot with damage to its body, late at night to ascertain if she needed assistance (see generally, People v. Ocasio, 85 NY2d 982, 984 ).
On the record in this case, it cannot be said that the lower court's findings were clearly erroneous inasmuch as the officer's opening of defendant's vehicle door to check on her welfare was not an act which required that a warrant first be obtained (see generally, People v. Harrison, 57 NY2d 470  [dirty condition of rental car], People v. David L, 56 NY2d 698  revg. on dissent 81 AD2d 893, 895—896 , cert. denied 459 US 866 ; People v. Mueses, 137 AD3d 1664 [4th Dept. 2016]).
Here, the lower court's determinations are supported by the evidence in the record and were based upon the court's assessment of the credibility of the witness at the suppression hearing, and this Court perceives no basis to disturb that determination.
Further, while the lower court held that Officer Ambrose's act of opening the vehicle door was not considered a search in this case, it held that “arguendo, if in fact the law enforcement officer's actions constituted a search his conduct was lawful under the emergency doctrine exception” (March 2022 Decision at 4-5). Based upon a review of this record, it cannot be said that such ruling was clearly erroneous (Stokes, supra; Prochilo, supra).
Certificate of Compliance Ruling
After remand, defendant argued that the lower court erred in failing to vacate the COC as she claimed the DataMaster materials are discoverable under CPL § 245.20(1)(j), that the materials can be obtained by the People without a subpoena duces tecum, and that the People did not exercise due diligence or make reasonable inquiries in order to comply with CPL § 245.20(l)(j).
She also cited the Rome City Court decision: People v. Annis, (Rome City Ct, Docket CR 01694-22, June 12, 2023) which also addressed the issue relative to the People's discovery obligations regarding the DataMaster.
In its May 2023 decision, the lower court considered the testimony of Steven Carluccio, the Highway Safety Equipment Technical Supervisor at the Division of Criminal Justice Services, and held:
Upon applying the plain meaning of CPL § 245.20(1) to the facts of this case, the court unequivocally finds the People never obtained possession or control of the data subject to this motion. While the Utica Police Department may have physical possession of DataMaster instruments, the information contained therein cannot be extracted, examined nor retrieved by members of the police force. Physical possession of the instrument does not automatically translate to possession of the data transmitted from the devise [sic], or the information securely stored within for Article 245 purposes. These devices are neither owned by the police nor do any of their members provide maintenance on these instruments. Also, whether the raw data files and breath graphs generated from a breath sample are automatically uploaded to the DCJS server via an ethernet connection or later transmitted by manually dialing the device, is a process outside the scope of the Utica Police Department. The testimony and evidence presented, clearly demonstrates that it is only the trained technicians employed within the Highway Safety Technology Unit at DCJS who can access the SD Card contained within the DataMaster device itself to obtain the raw data and accompanying graphs. Unlike notepads, drawings, depositions, or photographs collected by a police officer at the scene of alleged criminal activity, the information in controvert [sic] is securely contained on a microchip within a devise [sic] that the arresting agency can not [sic] access nor do they have control over. This is not information collected by a law enforcement officer which is then in turn, provided over to DCJS for further analysis which would require disclosure. The DataMaster unit is a locked instrument with security bits in place to avoid corruption of the data captured, and prevent access by other agencies than DCJS. Without having custody or control of such data, any argument that disclosure is required by CPL § 245.20(1) is simply defeated. The court further relies upon People's Exhibit No.1 which is an electronic communication exchange between the Assistant District Attorney and the witness who testified at trial to support this conclusion. (May 2023 Decision at 8-9) [emphasis added]
With respect to defendant's argument that the People can obtain these materials without the use of a subpoena duces tecum, the lower court found that DCJS’ established procedures for the People to request and obtain such materials via a “survey”, are akin to those for a subpoena duces tecum:
In furtherance of a full analysis, the court would be remiss in not reviewing the supplemental language of CPL § 245.20(2) which states discoverable information must be provided by the People, “where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain”. The concise testimony of Supervisor Carluccio, revealed that such data has been made easily accessible to this defendant, as would be done for any defendant / defense counsel, upon such a request being made via a subpoena. Furthermore, while a member of any district attorney's office is required to complete a “survey”, to gain access to this information, the contents of the survey are essentially the same as a subpoena as required by a defendant. The DCJS representative re-affirmed this during the course of the hearing by stating the “survey” needed by the prosecution is essentially a subpoena, “just not in the form of a subpoena”. This testimony demonstrates the People along with defense counsel, are treated equally when it comes to obtaining such data from DCJS and any argument otherwise is merely semantics. Furthermore, the procedures implemented by DCJS to gain access to the contents of the SD card, does not shift the burden upon the People to provide this information as part of their discovery obligation. The court finds that while the raw data and breath graphs exist, they are simply not within the People's control and there are no barriers denying a defendant from independently accessing such information. (CPL § 245.20(2)) As such, the court further finds, the People's actions have not run contrary to the provisions of CPL § 245.20(1) or CPL § 245.20(2) by not suppling [sic] the information which is securely stored within the DataMaster devise [sic] and transmitted solely to the Division of Criminal Justice Services. (May 2023 Decision at 9-10) [emphasis in original]
Moreover, the lower court held that the mandated statutory compliance under CPL § 245.20(1)(j) is not applicable based upon the facts established in this case:
In People v. Pitts, Sup. Ct., Queens County, August 13, 2021, Mullen, J., Ind. No. 2409/2019, the court found “DCJS was not acting in a law enforcement capacity by maintaining the records relating to defendant's DNA profile in the state Databank” and there was no obligation under Article 245 requiring disclosure. It is evident that DCJS has a distinct role in the criminal justice system, and the storing of raw data and breath graphs does not invoke the automatic discovery provisions of CPL § 245.20(1)(j). (May 2023 Decision at 12) [emphasis added]
Based upon the foregoing, this Court finds no error in the lower court's May 2023 decision. As held by the lower court, the law enforcement agency which used the DataMaster to collect a sample of defendant's breath after her arrest, does not own, maintain or have access to the data collected internally. Law enforcement agencies simply do not possess any internal information generated by the DataMaster in any way. The officers only have access to the printed receipt after a breath sample is provided. Moreover, the only way the raw data can be accessed is by DCJS.
Further, with respect to obtaining the raw data material possessed by DCJS in a particular prosecution, Mr. Carluccio testified “the ‘survey’ needed by the prosecution is essentially a subpoena, ‘just not in the form of a subpoena’. This testimony demonstrates the People along with defense counsel, are treated equally when it comes to obtaining such data from DCJS and any argument otherwise is merely semantics” (May 2023 Decision at 10).
It is important to note that while the Annis decision held it was the clear the People can obtain the raw data material without the use of a subpoena duces tecum and that, in turn, such material was discoverable, as evidenced by the testimony proffered by Mr. Carluccio in this case, the raw data can only be obtained after the People complete and submit a survey to DCJS. As discussed above, the survey procedures established by DCJS in order to obtain this raw data parallel those the People would follow when serving a subpoena duces tecum.
As such, the lower court did not err in finding the People were not in violation of their discovery obligations as delineated under CPL Article 245 as the testimony at the hearing established the raw data collected and solely accessed and maintained by DCJS, a non-law enforcement agency, is not within their possession and, as a result, not discoverable. Moreover, the lower court did not err in finding the People's COC was duly filed.
The Court finds defendant's remaining contentions to be without merit.
It is hereby ORDERED that the decision and order so appealed from is affirmed.
The foregoing constitutes the opinion, decision and order of this Court.
1. People v. Taylor, 80 Misc 3d 184 [Utica City Court 2023]
Robert L. Bauer, J.
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Docket No: Docket No. CR 1084-21
Decided: September 20, 2023
Court: County Court, New York,
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