DECISION AND ORDER The defendant, a New York State trooper, is charged with Driving While Intoxicated (VTL §§1192 [2], [3]) and Driving While Ability Impaired (VTL §1192 [1]). Shortly after the defendant’s arrest, the People utilized their subpoena power under Civil Rights Law §50-a (4) to obtain the defendant’s employment records as a state trooper. On May 10, 2018, an impromptu hearing was held on the propriety and legality of the People’s use of §50-a (4). At that hearing, the Court ruled that the People abused their subpoena power and precluded them from using any information or material obtained from the subpoena. The defendant now moves for dismissal of the charges against him in furtherance of justice under CPL §170.40 (1), arguing that the People’s abuse of subpoena power compels such a result. The People contend that the subpoena was issued properly; and even if it was not, the remedy is suppression of the inappropriately obtained evidence and not dismissal of the charges.Having reviewed additional papers submitted by both parties and the documents in the court file, the Court adheres to its earlier oral ruling that the People abused their authority. However, the People’s misconduct here was not so egregious as to warrant dismissal in the interest of justice. Having further balanced the factors enumerated in CPL §170.40 (1), the Court DENIES the defendant’s motion to dismiss.FACTUAL BACKGROUND AND PROCEDURAL HISTORYThe defendant is a New York State trooper. On July 28, 2017, police responded to an anonymous 911 call of a man sleeping behind the wheel of a running motor vehicle. When the police arrived, they found the defendant sleeping in a parked car. The People allege that the car was parked in the middle of the road at an awkward angle, blocking a driveway. They further allege that the defendant was unresponsive to verbal communication by the officer who came to the scene. The responding officer noticed an odor of alcoholic beverage emanating from the defendant’s breath and observed him to have bloodshot, watery eyes. The defendant was transported to the 45th Precinct where a breathalyzer test was conducted. It was determined that the defendant had a blood alcohol content of .16 per centum by weight of alcohol. The defendant was subsequently charged with Driving While Intoxicated (hereinafter “DWI”) and related charges.After the commencement of this case, the assigned assistant district attorney (hereinafter “ADA”) issued a subpoena to the New York State Police requesting the defendant’s employment records. While a law enforcement officer’s personnel records are considered confidential and may be disclosed only by the subject officer’s consent (Civil Rights Law §50-a [1]) or a court order (Civil Rights Law §50-a [2]), the ADA used the exception for prosecutors found in subdivision four (Civil Rights Law §50-a [4] ["The provisions of this section shall not apply to any district attorney or his assistants…which requires the records described in subdivision one, in the furtherance of their official functions"]). The People did not alert the Court about the subpoena prior to its issuance.What happened next is not entirely clear to this Court. There is a copy of a letter from the New York State Police dated February 6, 2018 in the court file, indicating that the subpoenaed materials were received by the court. There is a handwritten note at the bottom of the letter stating, “Records given ADA 2-9-18.” It is unknown if a judge had reviewed the records before they were turned over. The ADA indicates that he received the requested materials at some time prior to May 10, 2018. He does not specify whether the materials were received from the court or directly from the State police, or both. What is clear, however, is that after the People obtained the subpoenaed materials, the ADA e-mailed defense counsel. In that e-mail, there was an attachment of a PDF file consisting of the defendant’s personnel records, which was redacted in accordance with an internal review by the District Attorney’s Office.On May 10, 2018, defense counsel brought up the issue of the propriety and legality of the People’s use of Civil Rights Law §50-a (4) to obtain the defendant’s employment records. The Court was unfamiliar with the case and held an impromptu hearing on the issue. An ADA from the Public Integrity Bureau argued for the People as the assigned ADA was engaged in a trial. At the hearing, the People argued that the plain language of the statute, which permits “any district attorney or his assistants” to obtain personnel records of law enforcement officers as long as it is “in the furtherance of their official functions,” gave them, in essence, unqualified authority to subpoena the defendant’s personnel records (Civil Rights Law §50-a [4]). The People argued that obtaining the defendant’s employment record was part of performing their official function as these records would be used to decide what kind of plea bargain may be offered. Moreover, they asserted that the records needed to be examined to see if there were any kind of official misconduct on the part of the investigating officers in this case. However, the People failed to give additional information as to what misconduct took place by the defendant or the investigating officers.Defense counsel rebutted by arguing that the defendant was charged with DWI — as opposed to a charge of Official Misconduct, for instance — and that there was nothing unusual about the circumstances in how he was arrested or treated during the investigation. Accordingly, the defense argued, the defendant’s employment record as a police officer was not at issue in this prosecution. Citing the abuse of authority by the prosecutor, the defendant asked the Court to preclude the People from using the subpoenaed materials and any information gleaned from them at trial.At the conclusion of the hearing, the Court determined that there was nothing unusual about the way that the defendant was arrested or how the case was handled and investigated by the police. The Court was further unpersuaded by the People’s claims of how they used or planned to use the information from the subpoenaed materials. The People could not describe what, if any, misconduct had taken place or any steps they took to subpoena any other investigating officers’ information. Thus, the Court precluded the People from using the subpoenaed materials and any information gained from them at trial. Additionally, the Court ordered the People to turn over the materials to the Court for destruction, which the People complied.The defendant filed the instant motion on June 11, 2018, claiming that the People’s misconduct under §50-a rose to such a level that dismissal of the charges is required in the interest of justice (CPL §170.40 [1]). Both the defendant and the People filed successive motions over the course of ensuing five months. In those motions, both sides reargue their respective positions: Defense contends that the People’s subpoena power under §50-a is not unfettered and that their abuse of the power in this case compels dismissal. The People counter that they have a wide discretion and that their use of the statute in this case was proper.During the course of motion practice, an issue that was not previously discussed during the hearing came up. The defendant now asserts that, very shortly after the arrest, he was subjected to an interrogation about the arrest by his employer and that his answers may have been included in the subpoenaed materials. He argues that these communications are subject to immunity under Garrity v. New Jersey (385 US 493 [1967]). In Garrity, the Supreme Court held that the statements made by police officer defendants at the threat of employment termination were involuntary and that their use by the prosecution violated the defendant officers’ right against self-incrimination. The defendant claims that he too was compelled to give statements at the threat of termination of employment. He contends that the People’s subpoena in this case was a way to obtain those involuntary statements.On the other hand, the People acknowledge that they were aware of the interview that took place at or around the time of the defendant’s arrest by his employer, the New York State Police. In fact, they claim that one of their objectives in issuing the subpoena was to obtain the defendant’s statements from this interview, which they hoped to use in this prosecution. As to the potential Garrity issue, the People first rebut the defendant’s contention that he was coerced into making statements to the State police. Even if the statements were coerced, the ADA represents that that when he received the subpoenaed materials from the State police, he turned the records over to another prosecutor in the Public Integrity Bureau of the District Attorney’s Office to conduct a “Garrity screening” (People’s Response,
