DECISION AND ORDER Defendant is charged by information with one count of falsely reporting an incident in the third degree (Penal Law §240.50[3][c]). Defendant moves to dismiss the accusatory instrument as facially insufficient on the ground that the complaint fails to allege facts of an evidentiary nature supporting all the elements of the offenses. The People disagree. In a separate motion, defendant also requests, pursuant to Civil Rights Law §50-a[2] and CPL §610.25[3] in camera inspection and disclosure of disciplinary records of Detective Karlina Cortes from the NYCPD and CCRB.For the reasons set forth below, defendant’s motion to dismiss the information for facial insufficiency is denied and the request for the disciplinary records is also denied.The misdemeanor information alleges that on or about June 4, 2018, at about 10:46 p.m., at 164 East 102 Street in the County and State of New York:I [Detective Karlina Cortes] spoke to the defendant and completed a complaint report for a robbery after he told me that a person pulled out a revolver, pointed it at him, and took his cellular telephone.I later observed, via surveillance video, that the defendant had his cellular telephone taken from his hand but that the person who took it never displayed a revolver or any other firearm.A person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she: [3] gratuitously reports to a law enforcement officer or agency [c] false information relating to an actual offense or incident or to the alleged implication of some person therein.The allegations that this defendant made a complaint to the detective that a revolver was pulled out and pointed at him when his cell phone was taken and the video did not show a gun, provides in the light most favorable to the People, reasonable cause to believe that this defendant falsely reported the incident. This accusatory instrument contains sufficient evidentiary facts to provide reasonable cause to believe that the defendant knew the information reported was false when he reported it. The allegations in the information support the charge of falsely reporting an incident in the third degree. The claims he raises are more evidentiary in nature. Defendant’s arguments do not address the facial sufficiency of the information but rather raise a factual issue which should be resolved at trial. Accordingly, defendant’s motion to dismiss the charge of falsely reporting an incident in the third degree is denied.The request for records of Detective Cortes by defendant for in camera inspection by the Court was to show that the records contain evidence that is relevant and material to defendant’s defense at trial. Generally, personnel records of police officers are considered confidential and not subject to release or review unless the officer consents or is subject to a lawful court order. The courts have permitted access to the confidential records where a defendant shows likelihood that the records may provide a motive to falsify or biases, prejudices, ulterior motives, or where the records may also provide peculiar relevance to the circumstances of the defendant’s case. People v. Gissendanner, 48 NY2d 543, 548-49 (1979).To be able to get a subpoena to a nonparty, a defendant must show clearly that the records contain information that directly relates to his guilt or innocence of the instant crime. Id at 550. “Without the factual predicate, defendant’s subpoena merely constitutes a discovery demand directed to a non-party, which is in contravention to the discovery provisions of CPL Article 240.” People v. Bagley, 279 AD2d 426, 426-47 (1st Dept), lv to appeal denied 96 NY2d 711(2001).Defendant’s allegations that the federal civil rights suit against Detective Cortes by someone else would somehow show misconduct towards him is misguided. The release of personnel records for this detective would not yield any information that would go to any issues of guilt or innocence in this particular case. Here, defendant has failed to make a clear showing of facts sufficient to warrant the release of confidential personnel records for in camera review. People v. Valentine, 160 AD2d 325 (1st Dept), appeal denied 76 NY2d 797(1990).The foregoing constitutes the opinion, decision and order of the Court.Dated: February 13, 2019New York, New York
