City Court of Cohoes, October 16, 2020

Nave Law Firm (Derek S. Andrews of counsel) for defendant.

P. David Soares, District Attorney (Cheryl Flower of counsel), for plaintiff.

On November 3, 2019, the Cohoes police received a call that a Dodge Dakota pickup truck had hit a vehicle on Columbia Street and then fled the scene. An officer responded and observed a pickup matching the description of the fleeing vehicle driving on a nearby street. Accordingly, he stopped the pickup truck—the defendant Gary S. Preston was driving. When the officer approached Preston to ask for identification, he smelled liquor emanating from Preston. Upon being questioned about the accident, Preston admitted to his involvement. Further, he acknowledged to having had four beers at a nearby bar. In light of the accident, the odor of alcohol and the admission to have been drinking, the officer requested that Preston take a blood alcohol content (BAC) test—Preston refused. After refusing to take the test, Preston was arrested, and his truck was towed.

While being booked at the police station, Preston was advised of the consequences of his refusal to take a BAC test. Preston changed his mind and took the test—which he flunked. The breathalyzer test indicated that Preston's BAC was .19%. As a result, he was charged with, among other things, violating Vehicle and Traffic Law § 1192 (3).

After arraignment, the criminal process began to run its course which included mandatory disclosures. Pursuant to CPL 245.20, the prosecution provided automatic discovery. On the same date as the disclosures, the prosecutor filed her certificate of compliance and a statement of readiness for trial. Preston was dissatisfied with the disclosure. In particular, Preston argued that the DataMaster DMT subject test graph printout and raw data were discoverable materials because the materials were, although possessed and maintained by the Division of Criminal Justice Services (DCJS), records and data "relating to the criminal action or proceeding which were made by . . . a public servant engaged in law enforcement activity" (CPL 245.20 [1] [j]).

{**70 Misc 3d at 357}The question in this case centers on the scope of discovery, specifically the prosecution's discovery obligations under the recently passed CPL article 245. One of the effects of this new law was [*2]that it "significantly broadened the scope of the prosecution's discovery obligations" (People v Lustig, 68 Misc 3d 234, 238 [Sup Ct, Queens County 2020]). In a significant change from its predecessor, CPL 245.20 (1) lists several categories of items that are to be disclosed (id.). However, disclosure is not limited to items contained within these categories and thus incumbers the prosecution with a greater discovery burden (id.). In the event that there is a conflict over the disclosure of certain materials, the new law explicitly states that there is a presumption in favor of disclosure when interpreting the prosecution's discovery obligations (id.).

Against this backdrop, Preston argues that the prosecution is required to turn over the records and data related to his breathalyzer test held by DCJS. Moreover, he contends that since the records were not provided as part of statutory discovery, the prosecution's certificate of compliance is defective.

The prosecution concedes that the requested material is the type of material which it is mandated to provide the defendant. However, the prosecution claims that this material is not within its possession or control. Since there is no dispute over whether the material is discoverable, the sole question is whether DCJS is an agency engaged in law enforcement activity (CPL 245.20 [1] [j]).^[FN1]

The defense says that DCJS is engaged in law enforcement activity. This position is fortified by case law directly dealing with DCJS—although in a different statutory context. The Court of Appeals has examined the law enforcement agency exception contained in CPL 160.50 (1) (d) (ii) (Matter of Katherine B. v Cataldo, 5 NY3d 196 [2005]). While the term law enforcement agency is not mentioned in CPL 160.50, it "always appears in conjunction with the terms 'police department' and/or 'the division of criminal justice services' " (id. at 204). Thus, the Court of Appeals concluded that DCJS falls within the definition of a law enforcement agency in CPL 160.50 (1) {**70 Misc 3d at 358}(d) (ii) (id.; accord People v Anonymous, 34 NY3d 631, 639 [2020]). However, Cataldo rests on a statutory history peculiar to CPL article 160. CPL article 245 is a different statute with a different history, context and language than CPL article 160. Moreover, CPL article 245 has no legislative history that connects DCJS to the term law enforcement. Thus, Cataldo's applicability to CPL article 245 is quite limited.

On the other hand, the prosecution maintains that DCJS is not engaged in law enforcement activity. In support of this position, it cites a case involving whether an audiotape made by the Office of the Chief Medical Examiner (OCME) was Rosario material. The Court of Appeals resolved the case by noting that a Rosario obligation does not arise where the prosecution lacks control over the items in question and the entity in possession of them is not a law enforcement agency (People v Washington, 86 NY2d 189 [1995]). The Court concluded that since OCME's role was to provide an impartial determination of the cause and manner of death, it was not a law enforcement agency under the control of the prosecutor (id. at 193). [*3]Washington is persuasive by analogy.^[FN2]

The strength of the analogy rests primarily upon the relationship between Rosario material and CPL article 245. The holding of People v Rosario (9 NY2d 286 [1961]) was codified in CPL 240.45 (1) (a). That statute required prosecutors to disclose to the defense (1) "[a]ny written or recorded statement," (2) "made by a person whom the prosecutor intends to call as a witness at trial," and (3) "which relates to the subject matter of the witness's testimony" (CPL 240.45 [1] [a]). While CPL 240.45 (1) (a) speaks of "[a]ny written or recorded statement," its scope has been judicially interpreted as limited to circumstances where the trial prosecutor actually has possession or control of the requested materials subject to the Rosario rule (People v Kelly, 88 NY2d 248, 251-252 [1996]).

The prosecution's duty under Rosario is close kin but not identical to its duty imposed under CPL article 245. Indeed, in replacing CPL article 240 with CPL article 245, the legislature significantly broadened the prosecution's discovery obligations (Lustig, 68 Misc 3d at 237). Rosario disclosure focuses on the prosecution's control of material or control over the agency in{**70 Misc 3d at 359} possession of the material. In contrast, CPL article 245 speaks to the origin of the material being from a public servant and not whether the prosecution controls the public servant or the material. This much is certain from CPL article 245's language; its discovery mandate extends beyond a law enforcement agency to include any public servant engaged in law enforcement activity.

The recognition of CPL article 245's expanse diminishes the transitive authority of Washington. It is true that OCME's role is to provide an impartial determination of the manner of death, which is exactly why it is not a law enforcement agency. But, defendant's point (and a correct one) is that there is a difference between a law enforcement agency and law enforcement activity. OCME collects facts and makes a judgment on those facts to determine if the manner of death is a homicide, a suicide, an accident, natural or undetermined. OCME is not enforcing the criminal law when it reaches such a conclusion, but its conclusion plays an integral part in law enforcement activity. Therefore, the court finds Washington distinguishable and not dispositive of the People's obligations under CPL article 245.

So this brings the case back to the initial inquiry of whether DCJS's maintenance of records is a law enforcement activity. To resolve the issue without controlling precedent, the court must look at DCJS's function in the criminal justice system. DCJS's main mission is to collect, tabulate, maintain and transmit data (see generally Executive Law art 35). This data transmission most certainly includes assisting law enforcement. But not just law enforcement; DCJS assists the courts, the governor, the legislature, prisoners, private and public employers and other stakeholders in the criminal justice system.

Part of DCJS's vast duties include maintaining the DataMaster DMT subject test graph printout and raw data for breathalyzer tests. DCJS does not create these records; it simply holds them. The maintenance of these records requires no affirmative action by DCJS—it does not require DCJS to establish or collect data and, more importantly, it does not require DCJS to make decisions based upon the data. Rather, the maintenance of records is purely a passive activity [*4]that arguably ensures fair play by placing data beyond tampering or manipulation. Certainly, the data is used and relied upon by other public servants (like the Cohoes police) who engage in law enforcement activity. But, the mere holding of records by{**70 Misc 3d at 360} DCJS personnel, unlike a finding by a medical examiner, does not itself trigger law enforcement activity. This difference, in the court's opinion, is the demarcation between those activities which are law enforcement and those which are not.

Therefore, the court holds that the DataMaster DMT alcohol and breath profile graph and raw data in possession of DCJS is not part of the People's discovery obligation under CPL 245.20 (1) (j). Consequently, the prosecution has complied with their obligations; defendant's motion is denied. The Chief Clerk shall set the case for conference.