DECISION AND ORDER Defendant is charged with criminal possession of marijuana in the fifth degree [Penal Law §221.10(2)]; and, unlawful possession of marijuana [Penal Law §221.05]. On February 14, 2018, defendant filed notice with the Court an application for subpoena duces tecum, pursuant to Civil Rights Law §50-a and Criminal Procedure Law §610.20(3). Defendant moves the Court for an order directing the Civilian Complaint Review Board and Legal Bureau of the New York City Police Department to produce disciplinary records for Lieutenant Edward J. Taveras (48th Precinct, Tax Id. No. 921805, Shield No. 04449) within its custody and control, for in camera inspection. This Court grants defendant’s motion for subpoena duces tecum, and orders the Civilian Complaint Review Board and Legal Division of the New York City Police Department, to produce for in camera inspection disciplinary records of Lieutenant Edward J. Taveras.Motion for Subpoena Duces TecumPersonnel records used to evaluate performance of police officers are “considered confidential and not subject to inspection or review without the express written consent of such police officer…except as may be mandated by lawful court order.” See Civil Rights Law §50-a(1). Additionally, “prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.” See Civil Rights Law §50-a(2). If a sufficient basis for the requested personnel records is established, the issuing judge may order the records be sealed and sent directly to the court for in camera inspection, to determine “whether the records are relevant and material in the action…Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.” See Civil Rights Law §50-a(3).Interest Parties Received Opportunity to be HeardAs a threshold matter, this Court finds the Bronx District Attorney’s Office (The People), Civilian Complaint Review Board (CCRB), the Legal Bureau of the New York City Police Department (NYPD), and Lieutenant Edward J. Taveras are interested in parties that have been given the opportunity to be heard in this matter. See Defendant’s Exhibit C, Affidavit(s) of Service.On February 13, 2018, the Communications Division of the NYPD and CCRB received notice of defendant’s application by personal service. On February 13, 2018, Lieutenant Edward J. Taveras received notice, as personal service was made upon a person of suitable age and discretion, at his actual place of business, the 48th Precinct. See CPLR §308(2). On February 14, 2018, the People received notice of the instant application by personal service.In a letter dated February 15, 2018, the Legal Bureau of the NYPD requested additional time to “review the application and prepare opposition” to defendant’s motion. On February 16, 2018, defendant’s matter was on for a bench trial in Part AP 2, and the aforementioned letter was filed in court. The People were directed to respond to defendant’s motion by March 5, 2018, and the matter was adjourned to April 17, 2018 in Part AP 2 for decision. To date, this Court has not received opposition from any of the interested parties in this matter.Clear Showing of Facts Justifies Review of Disciplinary RecordsSubpoenas for law enforcement personnel files, such as disciplinary records, cannot be used for discovery purposes, “to ascertain the existence of evidence, but rather require the putting forth of a good faith factual predicate making it reasonably likely…the record actually contains information that carries a potential for establishing the unreliability of either the…charge or of a witness upon whose testimony it depends.” See People v. Calderon, 26 NYS3d 215 (Sup. Ct., New York County 2015), quoting People v. Gissendanner, 48 NY2d 543, 550 (1979). Criminal defendants must demonstrate “a likelihood that the (police) witness’ prior criminal or disciplinary record may provide a motive to falsify, or that the witness’ prior acts of misconduct believed to be within such records bear peculiar relevance to the circumstances of defendant’s case.” Id.Defendant argues, on May 10, 2017, Lieutenant Taveras “and other members of the 48th Precinct unlawfully arrested and searched (him) under the fabricated pretenses of a drug sale.” Defendant argues further, the criminal prosecution against him “depends primarily upon the testimony of” Lieutenant Taveras, as he was “the recovering and seizing officer upon whose testimony the prosecution of Mr. Pena will rely.” In support of his application for subpoena duces tecum, defendant cites to and provides the Court with exhibits, regarding three pending civil lawsuits involving Lieutenant Taveras, wherein he is being sued for “excessive force, (making) false arrests, false imprisonment, fabricating statements, (making) false sworn statements in support of a false arrest, unlawful searches, unlawful stops and unlawful seizures.”In the instant matter, on May 10, 2017, Lieutenant Edward J. Taveras informed police officer Lissette Henriquez (48th Precinct, Shield No. 6194), that he seized thirteen (13) “Ziploc” bags each containing a dried leafy substance with a distinctive odor he believed to be marihuana, based on his training and experience with controlled substances. See People v. Kalin, 12 NY3d 225 (2009). On May 16, 2017, Lieutenant Taveras signed a supporting deposition, under penalty of perjury pursuant to Penal Law §210.45, affirming his prior statements.This Court finds defendant presented a good faith basis for seeking Lieutenant Edward J. Taveras’ disciplinary records, and has made the requisite clear showing of facts sufficient to warrant in camera inspection of the lieutenant’s disciplinary records.The unproven allegations of Lieutenant Taveras’ alleged misconduct, specifically in Exhibit A-1, Richard Velez v. City of New York et al, Index No.: 311529/2011 (Sup. Ct., Bronx County 2011), are relevant to the instant matter, and establish a “tenable nexus between the officer’s alleged misconduct in the civil suit and the alleged misconduct in the defendant’s criminal case.” See People v. Ruiz, 66 NYS3d 400 (Crim. Ct., Bronx County 2017). The allegations in the civil case support defendant’s theory that Lieutenant Taveras, the subject officer of the civil case(s) and the recovering officer in defendant’s case, unlawfully searched and arrested him; and, fabricated sworn statements to support a false arrest in a narcotics related case. Moreover, the allegations in the civil cases go to the credibility of a police witness, and could potentially be used by defense on cross-examination of Lieutenant Taveras, as his testimony will be relied upon at defendant’s trial. See People v. Smith, 36 NY3d 861 (2016).DecisionFor the reasons stated, this Court grants defendant’s application for subpoena duces tecum, and orders the CCRB and Legal Bureau of the NYPD to produce for in camera inspection disciplinary records within its custody and control, pertaining to Lieutenant Edward J. Taveras (48th Precinct, Tax Id. No. 921805, Shield No. 04449). Said records are to be sealed and sent directly to “Bronx Criminal Court: Hall of Justice, Part AP 2, 265 East 161st Bronx, NY 10451,” wherein the assigned trial judge will conduct an in camera inspection, to determine whether any information is relevant and material, and should be disclosed to defendant’s counsel.The foregoing constitutes the decision and order of the Court.Dated: April 12, 2018Bronx, New YorkSO ORDERED:
