Upon the continued application of the defendant to strike the People’s certificate of compliance which was filed in compliance with CPL 245.50 based upon the failure to provide discovery required by subdivision one of section 245.20, the People argue that CPL article 245 does not require the People to obtain or produce unrelated Suffolk County Police Department Internal Affairs Bureau (IAB) files on police witnesses. Pursuant to CPL 245.20(1)(k), as part of automatic initial discovery, the People must provide “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…” The People claim this the language is limited by CPL 245.20(2) [ "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"]. Initially, it is noted that CPL 245.20(1) provides that discovery material includes all items and information that “are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control…” Moreover, the word “tends” should limit the disclosure. The question presented for the Court is considered against the background of the recent repeal of Civil Rights Law §50-a effective June 12, 2020, which eliminated any claim of confidentiality in IAB files. Cf. Uniformed Fire Officers Association, et al. v. DeBlasio, 2020 WL 4391302[ S.D.N.Y., July 31, 2020], appeal filed ___ F.3d ___ [ 2nd Cir., Aug. 24, 2020]. The legislative history of the repeal indicates that the original passage of Civil Rights Law §50-a was enacted “in order to prevent criminal defense attorneys from using these records in cross-examinations of police witnesses during criminal prosecutions [and] …narrowly interpreted [to] prevent access to both the records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings.” 2020 Sess. Law News of N.Y. Legis. Memo Ch. 96. Furthermore, the decision in this case must respect the legislative intent that 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.” CPL 245.20(7). The court agrees that the proper decision rests upon the statutory word “tends1.” As the People note, a case is “substantiated” where it is determined that the facts clearly support the allegation, “unsubstantiated” when the allegation cannot be resolved because sufficient evidence is not available, “exonerated” where the act was legal, proper and necessary and “unfounded” when there evidence establish that the act did not occur. Therefore, in cases involving exonerated and unfounded allegations, there is no good faith basis for cross examination by the defendant’s counsel and as such it is not evidence or information that tends to or has an inclination to impeach a police witness. See People v. Smith, 27 N.Y.3d 652; People v. Garrett, 23 N.Y.3d 878; People v. Brooks, 123 A.D.3d 448; cf. People v. Rouse, 34 N.Y.3d 269; see also New York Guide to Evidence §6.17. Consequently, IAB files involving allegations that have been determined to be exonerated or unfounds are not required to be provided as part of automatic discovery. See People v. Knight, ___ Misc.3d ___, 2020 WL 5224191 (Sup. Ct. Kings Cty, September 2, 20202); People v. Lustig, 68 Misc.3d 234 (Sup. Ct. Queens Cty, April 28, 2020). As to information required to be produced in substantiated and unsubstantiated IAB fives, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. The People thus may seek an limine ruling to preclude any cross examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness’s credibility or there is no good faith basis for the inquiry. This ruling, of course, does not limit the defendant to seek any such information under Freedom of Information Law [Public Officers §87]2 or by other methods. See People v. Suprenant, ___ Misc.3d ___, 2020 WL 5424041[Warren Co.. City Court, Sept. 10, 2020]. The People note that providing the IAB files may be unduly burdensome. Initially, such determination should be made on a case by case basis, not as a general determination, to deny discovery. Furthermore, the statute provides for expanded time for the People to obtain the information if such material is voluminous or not in their actual possession. CPL 245.10(1)(a). Also, if the files contain any material which should not be disclosed, the People have the availability to seek a protective order. CPL 245.70. Since the People have been acting in good faith and have provide discovery in harmony with their understanding of the requirements, at this juncture there is no basis to strike the certificate of compliance or impose other sanctions.3 The People must provide any available IAB files, in any form, involving any witness that they intend in good faith to call at a hearing and/or trial to the defendant involving substantiated or unsubstantiated allegations on or before September 22, 2020. Personal information, such as social security numbers and tax numbers may be redacted. CPL 245.20 (6); cf. Public Officers Law §89(2)(b). Dated: September 15, 2020
