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People v. Jones

Supreme Court, Bronx County

February 22, 2017

The People of the State of New York
Frederick Jones, Defendant.

          Defense Counsel: Brian Arthur, Esq. The Bronx Defenders

          The People: Assistant District Attorney Miriam O'Sullivan Assistant District Attorney Raymond Valerio Bronx County District Attorney Office

          Jeanette Rodriguez-Morick, J.

         At issue before the Court is whether the People are obligated to obtain and produce the [*2]raw electronic data from which the DNA profiles in this case were generated.[1]

         Defendant moves, under CPL 240.20 (1) (c) and (h), for disclosure of the raw electronic data underlying the DNA testing.

         The People oppose Defendant's motion arguing, primarily, that (1) raw electronic data does not constitute a "written report or document" such that discovery would be compelled by CPL 240.20; (2) the People do not possess and therefore have no obligation to obtain and disclose the raw electronic data; and (3) this Court has no authority to direct the Office of Chief Medical Examiner ("OCME") to create a CD containing the raw electronic data files because such an order, in effect, compels the creation of pretrial evidence and discovery, an ultra vires judicial function.

         For the reasons that follow, Defendant's motion is granted.[2]


         The defendant here, Frederick Jones ("Defendant"), is charged with, among other crimes, possession of a loaded firearm (Penal Law § 265.03). He and his two companions were seated in a car from which the police recovered a gun.[3] That gun was submitted to the Office of Chief Medical Examiner ("OCME"), Department of Forensic Biology, for DNA testing. The OCME identified a mixture of DNA from three people and, having obtained a DNA sample from Defendant, determined that he was a possible contributor to the DNA mixture found on the gun.

         On November 9, 2016, this Court held a hearing to gain an understanding of the nature of raw electronic data, how it is collected, its use in the development of the DNA profiles in this case, and the ease or not of its retrieval.[4] Based upon the testimony of Elizabeth Lee, an OCME criminalist, the following facts were established.

         When evidentiary material, such as the gun here, is swabbed for the possible presence of biological material capable of yielding DNA, the police provide the swabs to OCME and request that its Department of Forensic Biology test and analyze the swabbed materials (see Arthur Aff 3, ¶ 4). In this case, the People also moved for an order, pursuant to CPL 240.40 (2) (b) (v), compelling Defendant to provide a saliva sample that, once provided, was submitted by the People to OCME's Department of Forensic Biology for comparison against the DNA profiles generated from the biological material obtained from the gun (People v Jones, Bronx County, Sept. 14, 2015, Rodriguez-Morick, J., Indictment No. 2118-2014 [granting People's motion to compel buccal swab]).

         If DNA is detected in the biological material recovered, the DNA is extracted, quantified, and amplified. Defendant's saliva sample, obtained via the buccal swab, goes through the same process. As relevant here, electrophoresis, the next step of DNA testing, is a data collection process during which the DNA fragments are "run" through an "instrument"-in this case, the 3130 Genetic Analyzer. As the DNA fragments travel through capillaries or tubes, the instrument collects information from the DNA fragments such as the fragments' allelic ranges and separates alleles according to size. This information is what comprises, in part, raw electronic data captured in a unique *.fsa file, which file is created by the 3130 Genetic Analyzer software.[5] The *.fsa file or the raw electronic data is then uploaded into a software program, Gene Mapper, which in turn, generates an electropherogram-the basis for any DNA profile.

         To save time, several DNA samples from different cases are tested and analyzed all at once and travel together during each of the stages of DNA testing and analysis. The entire batch of DNA samples analyzed in this way is called a "run" and may include up to 96 DNA samples. Once these DNA samples are analyzed by the gene-analyzing instrument, the entire run of resulting *.fsa files is stored in a single folder and assigned a unique folder name. This run folder is saved on OCME's network drive and named after the gene-analyzing instrument used and year and month in which the run was completed.

         Each run folder contains not only the individual DNA samples that were run together but also contains the extraction negative control and the amplification positive and negative controls that were used during DNA testing and analysis for the entire run. Just as each DNA sample has its own unique *.fsa file name, so too do each of the controls.

         As relevant here, positive and negative controls are used to prevent one DNA sample from contaminating another and to ensure testing accuracy. A positive control is essentially a test sample engineered to yield a specific, known result when OCME's equipment is working properly. A negative control, on the other hand, is also a test sample but one that, in uncontaminated conditions, will contain no alleles or other indicia of DNA, the presence of which would indicate cross-contamination among the samples of a run. Whatever controls are used in a run are preserved and stored in the same run folder in which the individual DNA sample *.fsa files are stored. All together, these files constitute raw electronic data. (See Hr'g Tr. 15:14-18; 18:2-22; 45:16-18).

         The long and short of this is that the raw electronic data-that is, each of the individual DNA sample and control *.fsa files-is highly organized on OCME's network drive. Retrieving this data requires going through a three-step process of searching for the following: (1) a folder name reflecting the gene-analyzing instrument used plus the date of the run; (2) within that folder, the relevant individual sample files, i.e., the unique *.fsa file(s) for the individual DNA sample(s) relevant to a case; and (3) the *.fsa files for each of the controls used. Once the appropriate *.fsa files are identified, they are copied onto a CD that first has to be formatted. Formatting a CD may take up to 45 minutes.


         Raw Electronic Data is Discovery Material Under Article 240

         The statutory text of CPL 240.20, the statutory framework of article 240, its legislative history, and Court of Appeals precedent all support treating raw electronic data as discovery material under CPL 240.20.[6]

         Section 240.20 of the Criminal Procedure Law requires a prosecutor to disclose to a defendant certain "property" including "[a]ny written report or document, or portion thereof, concerning a scientific test relating to the criminal action which was made by, or at the request or direction of a public ...

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