New York County Defender Services

Testimony of

Mariah A. Martinez

Trial Attorney

New York County Defender Services

Before the

New York City Council

Committee on Public Protection

Committee on Oversight and Investigations

Joint Oversight Hearing on the Impact of the NYPD Erie Basin Storage Facility Fire

 

June 9, 2023

 

I am a Trial Attorney at New York County Defender Services, a public defense office that represents New Yorkers in thousands of cases in Manhattan’s Criminal and Supreme Courts every year. Thank you to Councilmember Hanks and Councilmember Brewer for holding this joint hearing about the New York City Police Department’s handling of the evidence stored at the Erie Basin Storage Facility, which caught fire on December 13, 2022.

This is an issue of great import to our office, as we believe the evidence in some of our clients’ cases – past and present – was stored in the Erie Basin facility. Since news of the fire broke nearly six months ago, we have been eager to determine the full scope of cases impacted. Moreover, the NYPD’s handling of the fire raises deep concerns within our office about the safety and protection of all evidence in the NYPD’s custody, not only at the Erie Basin warehouse, but at police precincts and in other evidence storage facilities as well.

We are grateful for the opportunity to share our experience and expertise with the committee today.

 

1. Background

On December 13, 2022, a fire broke out at the NYPD’s Erie Basin Evidence Center, a storage facility that warehoused physical and DNA evidence in thousands of New York City criminal cases.[1] Notably, the December fire was not the first natural disaster to affect the warehouse: Erie Basin Storage Facility also suffered extensive flooding and toxic exposure in the aftermath of Hurricane Sandy.[2] In fact, all the evidence not damaged from Hurricane Sandy was supposed to be transferred to an off-site facility over a decade ago.[3] For reasons that remain a mystery, the evidence remained at the decrepit warehouse, which in addition to being physically damaged also apparently lacked a basic fire protection system. According to news reports, “everything inside was either lost or damaged.”[4]

The evidence located at the facility belonged to cases dating as far back as three decades.[5] NYCDS presumes that evidence from at least some of its cases were stored at the Erie Basin facility. However, we are unable to identify how many of our current and past cases are impacted because the NYPD has refused to provide any detailed accounting of the scope of the fire’s damage.

The NYPD’s silence on the matter is alarming and suggests that even the custodian of these vital items is possibly unaware of the evidence in its possession. Indeed, as was reported in the aftermath of the fire, the NYPD never fully catalogued its evidence in closed cases.[6] For the most well-funded law enforcement agency in the entire country, this is unacceptable.

 

1. NYPD Evidence Tracking Procedures

In 2012, the NYPD introduced a new evidence cataloguing and barcoding system, called Property and Evidence Tracking System (PETS), built by a for-profit company called Capgemini[7] for $25.5 million dollars[8]. The PETS system was designed to “efficiently identify, locate, track, and route property and evidence.”[9] Notably, the PETS system, unlike its predecessors, relies on barcode technology that allows easy digital storage of information and tracking and establishes a web browser-accessible database.[10]

By all accounts, PETS was a long-overdue upgrade to the NYPD evidence tracking system. Prior to the PETS system rollout, the NYPD relied on “an entirely paper-based solution that had been in place, and largely unchanged, for over 100 years.”[11] Under the former system:

• All reporting had to be compiled manually by reviewing invoices and logs. Current numbers were then added or subtracted from the previous period’s results, to arrive at reportable information.
• Since property and evidence data was being managed and tracked manually on paper, valuable data was not easily accessible through any electronic means to be utilized in NYPD’s fight against crime.[12]

While the introduction of the PETS system held much promise that our city’s law enforcement agency would finally adopt a 21^st century evidence tracking system, its rollout has been disappointing and, at times, alarming.

In recent years, it has been uncovered that the PETS system is not backed up anywhere, meaning that the data could be permanently lost relatively easily.[13] In addition, the PETS system has been dogged by crashing issues to such an extent that in 2016, in response to a bill passed by this very committee requiring reporting on civil forfeitures,[14] the NYPD stated “attempts to perform the types of searches envisioned in the bill will lead to system crashes.”[15]

Moreover, it has become apparent in the aftermath of the Erie Basin fire that in the last decade since PETS became operational, the NYPD has not successfully uploaded and transferred its old cases to the PETS system. In December, experts speculated that “the extent of the fire’s damage may never be known, because the Police Department never fully cataloged old cases using the bar-coding system it initiated in recent years.”[16]

Unfortunately, the NYPD has not been forthcoming about the current state of their evidence storage and cataloguing procedures. However, in a civil proceeding shortly after the Hurricane Sandy damage in 2012,

Sgt. John Capozzi, who was assigned to the NYPD’s Property Clerk Division, testified that evidence [at the Erie Basin warehouse] was stored in 55 gallon cardboard drums, stacked on top of one another on pallets. Each drum would contain items from multiple cases stuffed inside either cardboard boxes or paper bags.[17]

 

• Evidence Cataloguing Methods in Other Jurisdictions

In 2003, the Law Enforcement Information Technology Standards Council (LEITSC), a part of the Bureau of Justice Assistance, promulgated best practices and standards for law enforcement offices’ evidence tracking systems.[18] The report recommended that every agency maintain and operate a records management system that is single entry (i.e., no duplicate data entry), submits data to external sources, contains a single database, and uses digitized and not handwritten notes.[19] Notably, the report recommends that law enforcement offices not use “stand-alone” methods to catalogue evidence.[20]

Two decades after these national guidelines were established, it appears our city’s law enforcement agency still struggles to comport with the basic tenets of recommended evidence storage practices. It bears noting that the NYPD is the largest and most well-funded law enforcement agency in the entire country.[21] Despite being far smaller and less resourced, many other police departments operate more modern, reliable and efficient property and evidence tracking systems. Below are examples of the types of evidence tracking systems that the NYPD could and should be using:

• Providence, RI: uses a platform called Aegis™ Records System, which mandates that every piece of evidence that is processed is labeled as follows:
  1. Property tags and property forms shall include detailed descriptions of each item of property/evidence submitted.
  2. Numerical values pertaining to the number(s) of an Item(s) submitted shall be documented, and officers shall refrain from using ambiguous terms such as “numerous”, “several”, or “assorted”.
  3. Individual entries will be made on the property form for each item (e., no “lumping together” of property in any entry).[22]
• Port of Seattle,[23] which maintains a unit of 100 offices operating in SeaTac, and Prince George County Police, a Virginia police department serving a population of 40,000 residents,[24] have both implemented digital evidence management systems called EvidenceonQ and DigitalonQ, respectively, two digital evidence management systems created by the company FileonQ. According to a blog post by the company, “Previous manual processes have now been replaced by automation, including evidence processing, performing inventories, producing reports, and monitoring the lifecycle of evidence.”[25]

 

1. Conclusion

Immediately after the fire in December 2022, the NYPD held a press conference in which they promised “a careful accounting of what types of DNA evidence were lost in the smoldering warehouse.”[26] Nearly six months later, we have heard nothing.

The NYPD’s silence is alarming and reignites longstanding concerns of the defense bar and the public that the current police evidence cataloging system is, at best, woefully deficient, and at worst, negligent. Our entire criminal legal system rests on the basic ability of our law enforcement agency to collect, preserve, organize and safely store pieces of evidence in criminal cases.  Thus, on a basic level, NYCDS demands to know the scope of the damage at the Erie Basin Storage Facility so that we may assess to what extent critical, possibly exonerating evidence in our clients’ cases is permanently destroyed. More broadly, we demand to learn to what extent the Erie Basin fire was due to the NYPD’s negligence. As explained above, this incident raises more serious concerns about the basic competence of the NYPD to safeguard vitally important evidence and property in its custody.

We thank the City Council for calling this oversight hearing and demanding the answers that the NYPD has thus far refused or been unable to provide.

[1] Corey Kilgannon, Hurubie Meko and Nate Schweber, ‘Nightmare’ Warehouse Fire Erases Evidence in Many Unsolved Cases, N.Y. Times, (Dec. 14, 2022), https://www.nytimes.com/2022/12/14/nyregion/police-warehouse-fire-evidence.html.

[2] Id.

[3] Id.

[4] Id.

[5] Hurubie Meko and Nate Schweber, Massive Fire Burns Down Part of an N.Y.P.D. Evidence Center in Brooklyn, N.Y. Times (Dec. 13, 2022), https://www.nytimes.com/2022/12/13/nyregion/nypd-brooklyn-fire-evidence-center.html.

[6] Kilgannon, Meko and Scheweber, supra note 1.

[7] CapGemini, New York City Police Department Successfully Implements a Property and Evidence Tracking System, (2014),  https://www.capgemini.com/gb-en/wp-content/uploads/sites/3/2017/07/ss_nypd_0.pdf.

[8] Sean Gallagher, Judge Shocked to Learn NYPD’s Evidence Database Has No Backup, ARS Technica, (Oct. 18, 2017, 4:40 PM), https://arstechnica.com/information-technology/2017/10/nypd-database-that-tracks-seized-evidence-and-cash-has-no-backup/.

[9] CapGemini, supra note 7.

[10] Id.

[11] Id.

[12] Id.

[13] Gallagher, supra note 8.

[14] 2017 N.Y. City Council Bill No. 2017/131, 318^th Leg. Sess. (N.Y. 2017) (enacted).

[15] Max Rivlin-Nadler, NYPD: Revealing the Truth About the Millions We Seize Would ‘Lead to Systems Crashes’, The Village Voice (Sept. 16, 2016), https://www.villagevoice.com/2016/09/16/nypd-revealing-the-truth-about-the-millions-we-seize-would-lead-to-systems-crashes/; Sean Gallagher, NYPD Can’t Count Cash They’ve Seized Because It Would Crash Computers, ARS Technica (Sept. 18, 2016), https://arstechnica.com/information-technology/2016/09/nypd-cant-count-cash-theyve-seized-because-it-would-crash-computers/.

[16] Kilgannon, Meko and Schweber, supra note 1.

[17] Gwynne Hogan and Jake Offenhartz, What’s At Stake With Untold Loss of DNA Evidence in NYPD Warehouse Fire, Gothamist (Dec. 22, 2022), https://gothamist.com/news/whats-at-stake-with-untold-loss-of-dna-evidence-in-nypd-warehouse-fire.

[18] See Law Enforcement Information Technology Standards Council (LEITSC), Standard Functional Specifications for Law Enforcement Records Management Systems (RMS), Bureau of Justice Assistance and the National Institute of Justice (2003), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/leitsc_law_enforcement_rms_systems.pdf.

[19] Id. at 1.

[20] Id. at 17.

[21] Vera, A Look Inside the New York City Police Department Budget (June 2020), https://www.vera.org/publications/a-look-inside-the-new-york-city-police-department-budget#:~:text=The%20New%20York%20City%20Police%20Department%20(NYPD)%20is%20by%20far,more%20than%20%2411%20billion%20annually.

[22] Providence Police Dep’t, Gen. Ord. 420.01, Property and Evidence Control (2018).

[23] FileonQ, Port of Seattle Police Implements EvidenceOnQ Evidence Management System From FileOnQ (Jul. 28, 2022), https://fileonq.com/port-of-seattle-police-implements-evidenceonq-an-evidence-management-system-from-fileonq/.

[24] FileonQ, Prince George County PD (VA) Implements DigitalOnQ

(Apr. 18, 2023), https://fileonq.com/prince-george-county-pd-implements-digitalonq/.

[25] FileonQ, Port of Seattle Police Implements EvidenceOnQ Evidence Management System From FileOnQ (Jul. 28, 2022), https://fileonq.com/port-of-seattle-police-implements-evidenceonq-an-evidence-management-system-from-fileonq/.

[26] Hogan and Offenhartz, supra note 17.