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The PEOPLE of the State of New York, Plaintiff, v. Carlos HERRERA, Defendant.
Amended Notice Motion 1
Affirmation in Support 2
Affirmation in Opposition 3
Reply Affirmation 4
On November 6, 2020, during a conference of this matter among the People, defense counsel and the court, an issue arose concerning the disciplinary records of the arresting and assisting officer in this matter, Officer Robert Galgano and Officer Daniel Concannon. At the conclusion of that conference, the matter was adjourned to December 17, 2020, for the People to provide the Defendant with the officers’ disciplinary records and for a further conference.
On December 17, 2020, the People provided the Defendant with information regarding civil lawsuits which have been brought against one or both of the officers. At that time, the People indicated that they would not be providing the Defendant with the disciplinary records previously discussed, expressing the opinion that they had no legal obligation to turn them over to defense counsel. The parties were then provided with a motion schedule, so that their respective positions could be reduced to writing and submitted to the court for a determination.
On December 30, 2020, rather than move to compel the People to provide the disciplinary records in issue, the Defendant filed a motion seeking to have the court issue a subpoena duces tecum for the production of the disciplinary records of Officers Galgano and Concannon by the Nassau County Police Department (“NCPD”). This motion was served on the Office of the District Attorney of Nassau County and on the Office of the Nassau County Attorney (“County Attorney”), on behalf of the NCPD, Officer Galgano and Officer Concannon. Neither the People, the NCPD nor Officers Galgano or Concannon opposed the Defendant's motion.
On February 3, 2021 this court issued a Decision and Order granting the Defendant's unopposed motion and issued a subpoena duces tecum directing the NCPD to produce at the Nassau County District Court, on February 19, 2021, the following items:
1. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Police Officer Robert Galgano, Shield No. 2774, and
2. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Police Officer Daniel Concannon, Shield # 308.
Following the issuance of that subpoena, defense counsel advised the court that the shield numbers previously provided to the court by defense counsel were incorrect and asked that the subpoena be corrected to reflect the officers' present status and serial numbers. On February 9, 2021 the court issued the corrected subpoena, directing the NCPD to produce at the Nassau County District Court, on February 19, 2021, the following items:
1. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Det. Robert Galgano, Serial No. 9555, and
2. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Det. Daniel Concannon, Serial No. 9556.
On or about February 17, 2021, following the service of the subpoena dated February 9, 2021, the County Attorney filed a motion seeking an order, inter alia, quashing the subpoena duces tecum. On that same date, the County Attorney filed an amended set of motion papers. The Defendant has filed opposition to this motion; and, the County Attorney has filed his reply to that opposition. The District Attorney's office has taken no position herein.
The County Attorney seeks an order, quashing the subpoena duces tecum. In the alternative the County Attorney asks the court to conduct an in camera inspection of the subpoenaed records, to limit the scope of production to “substantiated” internal investigations, and to direct the Defendant and his attorney to not publicly share the law enforcement records at issue.
The court would first note that the Defendant's motion seeking the subpoena at issue, the court's issuance of that subpoena and the present motion would have been completely unnecessary had the District Attorney's office and the NCPD complied with the very clear mandates of CPL §§ 245.55(1), 245.20(1)(k)(iv) and 245.20(2) which provide:
CPL § 245.55(1) - The district attorney and the assistant responsible for the case, ․, shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20. (emphasis added)
CPL § 245.20(1)(k)(iv) - 1. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to: (k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: ․ (iv) impeach the credibility of a testifying prosecution witness ․ Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article. (emphasis added)
CPL § 245.20(2) - The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and cause such material or information to be made available for discovery 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. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.
The court would further note that CPL § 245.20(7) provides, “There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article.”
There have been a number of published decisions addressing the manner in which the People may comply with their affirmative discovery obligations, when it comes to compliance with CPL § 245.20(1)(k)(iv). Some of these decisions require more of the People, some require less. They all require the People to do something. For example, in People v. Akhlaq, 2021 WL 1047074, 2021 NY Slip Op. 21060 (Sup. Ct. Kings Co. 2021), the court found “providing impeachment information culled from personnel files of testifying police witnesses” to be sufficient. In People v. Suprenant, 2020 WL 5422819, 2020 NY Slip Op. 20227 (City Ct. Glens Falls 2020) the court found “the People's discovery obligation is satisfied where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the materials or information to be made available to defense counsel.” In People v. Randolph, 69 Misc 3d 770, 132 N.Y.S.3d 726 (Sup. Ct. Suffolk Co. 2020) the court found that “files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery[,]” leaving substantiated and unsubstantiated files which must be produced. In People v. Cooper, 2021 WL 728983, 2021 NY Slip Op. 21039 (County Ct. Erie Co. 2021) the court found that:
the definition of ‘law enforcement disciplinary records’ is a non-exhaustive list referencing ‘any record created in furtherance of a law enforcement disciplinary proceeding’ (Public Officers Law 86, see also, Buffalo Police Benevolent Association, Inc. v. Brown, 69 Misc 3d 998 [Sup Ct, Erie County October 9, 2020])․ When the prosecution witness is a law enforcement officer that information includes the officer's disciplinary records.
Notwithstanding this range of options initially available to the People, at least until there is some appellate authority addressing these issues, the People herein chose to do nothing, which is far from diligent good faith, reasonable under the circumstances.
Turning to the substance of this motion, contrary to the position taken by the County Attorney, the subpoena is neither “overbroad” nor “nebulous.” (Bergstrom Affirmation 2/17/21, ¶ 8) As indicated hereinabove, the subpoena requires, “in accordance with Public Officers Law §§ 86, 87 and 89,” the production of “all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation[s] of Det. Galgano [and Det. Concannon.]”
Public Officers Law § 86(4) provides that:
“ ‘Record’ means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
“ ‘Agency’ means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.” Public Officers Law § 86(3)
Public Officers Law § 86(6) defines “Law enforcement disciplinary records” as:
any record created in furtherance of a law enforcement disciplinary proceeding, including, but not limited to:
(a) the complaints, allegations, and charges against an employee;
(b) the name of the employee complained of or charged;
(c) the transcript of any disciplinary trial or hearing, including any exhibits introduced at such trial or hearing;
(d) the disposition of any disciplinary proceeding; and
(e) the final written opinion or memorandum supporting the disposition and discipline imposed including the agency's complete factual findings and its analysis of the conduct and appropriate discipline of the covered employee.
“ ‘Law enforcement disciplinary proceeding’ “means the commencement of any investigation and any subsequent hearing or disciplinary action conducted by a law enforcement agency[;]” Public Officers Law § 86(7); and, “Law enforcement agency:”
means a police agency or department of the state or any political subdivision thereof, including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law, a sheriff's department, the department of corrections and community supervision, a local department of correction, a local probation department, a fire department, or force of individuals employed as firefighters or firefighter/paramedics.
In this light, it is clear that there is nothing vague or unreasonably expansive about the items subject to the subpoena. The subpoena, in fact, directs the production of nothing more, or less, than that to which the Defendant would be entitled pursuant to a FOIL request.
The County Attorney's objection to the issuance of the subpoena, because the Defendant has allegedly failed to demonstrate that the items sought are material and relevant to the present criminal prosecution, is equally without merit. With the enactment of Article 245 of the Criminal Procedure Law, effective January 1, 2020, the Defendant no longer has an obligation to make a demand or demonstrate the need for items subject to the People's new automatic discovery obligations, as set forth in CPL §§ 245.10 and 245.20(1)(a-u). See: People v. Villamar, 69 Misc 3d 842, 132 N.Y.S.3d 593, (Crim. Ct. NY Co. 2020); People v. DeMilio, 66 Misc 3d 759, 117 N.Y.S.3d 830 (County Ct. Dutchess Co. 2020); People v. Lobato, 66 Misc 3d 1230(A), 122 N.Y.S.3d 492 (Crim. Ct. Kings Co. 2020)
As indicated hereinabove, CPL 245.20(1)(k)(iv) specifically mandates the disclosure of, “All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: ․ impeach the credibility of a testifying prosecution witness․” See also: Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972) These items must be disclosed “regardless of whether the prosecutor finds the information to be ‘material’ or ‘credible.’ ” People v. Suprenant, supra. That the People have chosen to shirk their responsibility in this regard herein, does not prevent the Defendant from seeking the disclosure of this material via subpoena.
The court further declines the entreaty of the County Attorney to limit the NCPD's production of the subpoenaed material to “substantiated” law enforcement records. Contrary to the County Attorney, People v. Randolph, supra. did not limit disclosure of the requested records to “substantiated” allegations of misconduct. That court, in fact, found that “substantiated” and “unsubstantiated” claims of misconduct may be the subject of impeachment at hearing and/or trial. Moreover, while this court appreciates the logic the Randolph, id. decision, this court finds the decision in People v. Cooper, supra. more persuasive. As noted therein:
The legislative intent in repealing 50-a 1 was to make law enforcement disciplinary records fully available. The definition of ‘law enforcement disciplinary records’ is expansive and inclusive. It does not distinguish between unfounded, exonerated, substantiated or unsubstantiated. Indeed, there is no indication that any of these terms are used with any uniformity between law enforcement agencies and across the State. Additionally, the definition of “law enforcement disciplinary records” is a non-exhaustive list referencing “any record created in furtherance of a law enforcement disciplinary proceeding” (Public Officers Law 86, see also Buffalo Police Benevolent Association, Inc. v. Brown, 69 Misc 3d 998 [Sup Ct, Erie County October 9, 2020]).
Similarly, the court finds no reason, at this stage, to conduct an in camera review of the material in question, to determine what the Defendant may see and what he may not. “Once disclosed, the full and appropriate use of the information and its admissibility is subject to further debate and discussion before the court as a motion in limine before trial.” People v. Cooper, supra.; See also: People v. Randolph, supra.
Likewise, the County Attorney provides no justifiable reason why the court should direct the Defendant and his attorney to not publicly share the information they receive in response to the subpoena. The movant's reliance on Fowler-Washington v. City of New York, 2020 WL 7237683 (E.D. NY 2020) is misplaced. The limited protective order issued therein was based upon the Federal Rules of Civil Procedure and not CPL Article 245 or New York's Public Officers Law. The court therein specifically recognized “the scope of discovery under Federal Rule of Civil Procedure 26 is likely much broader than New York's Freedom of Information Law, and so Plaintiff here will have access to more documents than he would as a member of the public, even after the repeal of Section 50-a.” Moreover, the court made clear that:
the protective order does not restrict the sharing of information that would be publicly available following repeal of Section 50-a․ Furthermore, the protective order specifically allows that any record produced to Plaintiff need not be kept confidential if it was ․ ‘otherwise publicly available.’ (Protective Order ¶ 3.) Thus, if Plaintiff is correct, that all of the relevant records should now be public following the repeal of Section 50-a, he may obtain them through New York's process for obtaining such records, and they will no longer be considered confidential under the protective order.
The County Attorney's privacy concerns should be allayed by limitations on disclosure as set forth in Public Officers Law § 87, particularly subparagraphs 4-a and 4-b, which provide:
4-a. A law enforcement agency responding to a request for law enforcement disciplinary records as defined in section eighty-six of this article shall redact any portion of such record containing the information specified in subdivision two-b of section eighty-nine of this article prior to disclosing such record under this article.
4-b. A law enforcement agency responding to a request for law enforcement disciplinary records, as defined in section eighty-six of this article, may redact any portion of such record containing the information specified in subdivision two-c of section eighty-nine of this article prior to disclosing such record under this article.
In turn, Public Officers Law § 89(2-b) and (2-c) provided, in pertinent part:
2-b. For records that constitute law enforcement disciplinary records as defined in subdivision six of section eighty-six of this article, a law enforcement agency shall redact the following information from such records prior to disclosing such records under this article:
(a) items involving the medical history of a person employed by a law enforcement agency as defined in section eighty-six of this article as a police officer, peace officer, or firefighter or firefighter/paramedic, not including records obtained during the course of an agency's investigation of such person's misconduct that are relevant to the disposition of such investigation;
(b) the home addresses, personal telephone numbers, personal cell phone numbers, personal e-mail addresses of a person employed by a law enforcement agency as defined in section eighty-six of this article as a police officer, peace officer, or firefighter or firefighter/paramedic, or a family member of such a person, a complainant or any other person named in a law enforcement disciplinary record, except where required pursuant to article fourteen of the civil service law, or in accordance with subdivision four of section two hundred eight of the civil service law, or as otherwise required by law. This paragraph shall not prohibit other provisions of law regarding work-related, publicly available information such as title, salary, and dates of employment;
(c) any social security numbers; or
(d) disclosure of the use of an employee assistance program, mental health service, or substance abuse assistance service by a person employed by a law enforcement agency as defined in section eighty-six of this article as a police officer, peace officer, or firefighter or firefighter/paramedic, unless such use is mandated by a law enforcement disciplinary proceeding that may otherwise be disclosed pursuant to this article.
2-c. For records that constitute “law enforcement disciplinary records” as defined in subdivision six of section eighty-six of this article, a law enforcement agency may redact records pertaining to technical infractions as defined in subdivision nine of section eighty-six of this article prior to disclosing such records under this article.
Pursuant to Public Officers Law § 86(9):
‘echnical infraction’ means a minor rule violation by a person employed by a law enforcement agency as defined in this section as a police officer, peace officer, or firefighter or firefighter/paramedic, solely related to the enforcement of administrative departmental rules that (a) do not involve interactions with members of the public, (b) are not of public concern, and (c) are not otherwise connected to such person's investigative, enforcement, training, supervision, or reporting responsibilities.
Finally, the County Attorney's request for a protective order, pursuant to CPL § 245.70, is untimely, having been raised for the first time in their reply papers, See: Ritt v. Lenox Hill Hospital, 182 AD2d 560, 582 N.Y.S.2d 712 (1st Dept. 1992) [“As we view it, the function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion”]. It shall not be considered by the court and is, nevertheless, substantively without merit.
Accordingly, the motion to quash is denied in its entirety; and, it is hereby
ORDERED, that, on or before May 14, 2021, the Nassau County Police Department shall produce the records which are the subject of the subpoena duces tecum dated February 9, 2021.
This constitutes the decision and order of the court.
1. Civil Rights Law § 50-a
Andrew M. Engel, J.
Response sent, thank you
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Docket No: CR-004539-20NA
Decided: April 05, 2021
Court: District Court, New York,
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