PEOPLE v. WILLIAMSON (1997)

 The above named defendant was arraigned on April 4, 1997, on the charges of Murder in the First Degree, Murder in the Second Degree, Assault in the Second Degree (2 counts) and Endangering the Welfare of a Child, in violation of Sections 125.27(1)(a)(ix) and (b), 125.25(1), 120.05(1), 120.05(9) and 260.10(1) of the Penal Law.   On the date of the arraignment, by Order to Show Cause, defendant requested a court order requiring the preservation and non-exhaustion of all evidence and that defense experts be permitted to be present during and observe all testing of evidence by prosecution and government experts.   On the same date, the People filed an Affirmation in Opposition.   Oral argument was heard and additional memoranda were filed by both sides.

The main thrust of defendant's argument is that since this is a potential death penalty case, higher standards should be applied than those which are applied to any other criminal trial.  (Citing Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S.Ct. 1669, 1670-1671, 90 L.Ed.2d 1;  Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639-2640, 86 L.Ed.2d 231;  Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944;  People v. Jardin, 88 N.Y.2d 956, 647 N.Y.S.2d 160, 670 N.E.2d 444;  People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134;  People v. Jackson, 14 N.Y.2d 5, 8, 247 N.Y.S.2d 481, 196 N.E.2d 887;  People v. Rosario, 9 N.Y.2d 286, 291, 213 N.Y.S.2d 448, 173 N.E.2d 881;  People v. Cooke, 292 N.Y. 185, 190, 54 N.E.2d 357.)

The People oppose based upon the legal precedent that there is no legal basis or authority for the relief requested by the defendant since there is no general constitutional right to discovery in criminal cases.  (Citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281;  California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413;  Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845-846, 51 L.Ed.2d 30;  Matter of Miller v. Schwartz, 72 N.Y.2d 869, 532 N.Y.S.2d 354, 528 N.E.2d 507;  People v. Alvarez, 70 N.Y.2d 375, 521 N.Y.S.2d 212, 515 N.E.2d 898;  Matter of Catterson, Jr. v. Jones, 233 A.D.2d 502, 650 N.Y.S.2d 993;  Matter of Pirro v. LaCava, 230 A.D.2d 909, 646 N.Y.S.2d 866, 867.)

 “․ the County Court ․ may not grant discovery applications in criminal actions for which there is no statutory basis․”  Matter of Pirro v. LaCava, supra, at 910, 646 N.Y.S.2d at 867.  “Discovery which is unavailable pursuant to statute may not be ordered based on principles of due process because ‘there is no general constitutional right to discovery in criminal cases' (Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870[, 532 N.Y.S.2d 354, 528 N.E.2d 507,] citing Weatherford v. Bursey)”  Id.   See also Matter of Catterson, supra.

Woodson v. North Carolina, supra, and the other cases cited by defendant support the proposition that, “[b]ecause of that qualitative difference [between a death sentence and any other sentence], there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”  Woodson v. North Carolina, supra, at 305, 96 S.Ct. at 2991.   The other cases cited emphasize that, whatever procedural rights a defendant has, the courts will be especially careful in scrutinizing allegations of error related to those rights in a capital case.  (See, e.g., People v. Jackson, supra, at 8, 247 N.Y.S.2d 481, 196 N.E.2d 887, where the court states, “We hold that the trial court's refusal to charge as requested was, especially because this is a capital case conviction, grave error.”)   These cases do not support the proposition that because this is a potential capital case, ipso facto, defendant is entitled to additional rights that otherwise do not exist or are guaranteed based upon principles of due process under the State or Federal Constitution.

 A careful reading of all cases cited by the defendant shows that the defendant is attempting to create a right that has never been recognized, guaranteed, or required under any statute or constitutional mandate whether state or federal.  Arizona v. Youngblood, supra, held that it was not error for the People to fail to preserve evidentiary material of which no more can be said than that it could have been tested and the result may have helped the defendant.   This did not violate the guarantees under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, since the police do not have a duty to preserve all material that might be of conceivable evidentiary significance.   This is especially true when the exculpatory value of the evidence is purely speculative (See, California v. Trombetta, supra.)

 Whatever duty the constitution imposes on the states to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.   To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400-2401, 49 L.Ed.2d 342, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable available means.  California v. Trombetta, supra, at 488-489, 104 S.Ct. at 2533-2534.

The New York Court of Appeals has also recognized the requirement of materiality as set forth in California v. Trombetta, supra (See People v. Jardin, supra).   In People v. Jardin, the Court of Appeals held that the defendant's due process rights under the State and Federal Constitutions were not violated by the People's failure to gather and adequately preserve evidence for testing.   In citing California v. Trombetta, supra, and People v. Alvarez, supra, the Court of Appeals held that “defendant has not shown that the potential evidence was material, that is, that a sample possesses an exculpatory value evident before its destruction, loss, or failure to preserve, and that defendant was unable to obtain comparable evidence by reasonable means.”  People v. Jardin, supra, at 958, 647 N.Y.S.2d 160, 670 N.E.2d 444.   Other cases cited by the defendant and the People follow the same rationale:   People v. Callendar, 207 A.D.2d 900, 616 N.Y.S.2d 667 (2d Dept., 1994), there was no merit to the defendant's contention that he was denied due process by the loss of a rape kit prior to testing.   Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law, citing Arizona v. Youngblood, supra;  People v. Taylor, 169 A.D.2d 791, 792, 565 N.Y.S.2d 159, and the defendant's contention that he was denied due process by the failure of the police to gather and preserve potentially exculpatory evidence, to wit, seminal fluid allegedly deposited on the complainant's underwear, is without merit.  “The police do not have a duty to preserve all material that might be of conceivable evidentiary significance (Arizona v. Youngblood, supra;  California v. Trombetta, 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413];  see also, People v. Alvarez, 70 N.Y.2d 375 [521 N.Y.S.2d 212, 515 N.E.2d 898]), especially when the exculpatory value of the evidence is purely speculative, as it is here (see, California v. Trombetta, supra;   People v. Ramos, 147 A.D.2d 718 [538 N.Y.S.2d 327]).”   People v. Taylor, supra, at 792, 565 N.Y.S.2d 159.

The present statutory scheme for discovery affords defendant the protection he seeks and allows for appropriate remedies for any possible error by the People in connection with any constitutionally material evidence.   See, People v. White, 40 N.Y.2d 797, 390 N.Y.S.2d 405, 358 N.E.2d 1031;  People v. Ramos, 147 A.D.2d 718, 718-19, 538 N.Y.S.2d 327 (2d Dept.1989);  People v. Taylor, supra, at 792, 565 N.Y.S.2d 159;  People v. Karpeles, 146 Misc.2d 53, 60-63, 549 N.Y.S.2d 903 (Crim.Ct.City of New York, Richmond County, 1989).

Defendant's present request is vague, overbroad, and fails to meet the required standard of constitutional materiality.

Accordingly, the defendant's motion is denied.

PATRICK J. McGRATH, Justice.