ADDITIONAL CASES The People of the State of New York v. Daren Swift, Defendant; 02373-2019 DECISION ON MOTIONS TO QUASH Introduction In these cases, defendants challenged the People’s Certificates of Compliance (COC) based on, as relevant here, the disclosure of only a list of substantiated misconduct complaints for testifying police officers. Although this court earlier ruled that the People had to provide underlying documents for both substantiated and unsubstantiated complaints, the New York City Police Department (NYPD) refused to provide records for the unsubstantiated complaints without a subpoena. The People prepared the subpoenas, the court signed them, and the NYPD now moves to quash them. After review of the relevant case law, multiple submissions by the parties and defense counsel as amici, as well as extensive oral arguments, the court denies the motions to quash and orders the NYPD to comply with the lawfully issued subpoenas. Background Defendant Daren Swift is charged under Ind. No. 02373-2019 with Assault in the First Degree and other crimes. In an unrelated case, Daniel Castellanos and Paul Castellanos are charged under Ind. No. 00430-2019 with Attempted Murder in the Second Degree and other crimes. To comply with their new obligations under the 2020 discovery reforms, the People filed an Automatic Discovery Form (ADF) and a Certificate of Compliance (COC) in each case on January 17, 2020. Defendants then challenged the validity of the COCs on multiple grounds. As relevant to these motions to quash, in both cases defendants argued that, pursuant to CPL §245.20(1)(k)(iv), it was insufficient for the People to provide only a list of substantiated misconduct complaints for testifying police officers. In Swift, defendant argued he was also entitled to unsubstantiated complaints and underlying documents for both.1 In Castellanos, defendants argued they were entitled to all underlying documents for all misconduct complaints, including those complaints that were determined to be unsubstantiated, unfounded, exonerated or truncated. In each case, this court ruled that the People had to provide both substantiated and unsubstantiated complaints from both the Civilian Complaint Review Board (CCRB) and the New York City Police Department (NYPD). The court further ruled that a list was not sufficient and that the People had to provide underlying documents.2 To comply with the court’s rulings, the People provided defendants with underlying documents for substantiated and unsubstantiated complaints that were either in their possession or obtained from the CCRB. However, they were unable to provide documents for the unsubstantiated complaints from the NYPD, as the NYPD would not provide any records to the People without a subpoena. The People prepared subpoenas for the case files for unsubstantiated complaints for the testifying officers in each case and the court signed them. The NYPD then filed these motions to quash the subpoenas. Legal Discussion The defendants’ challenges to the People’s COCs raised two keys issues regarding CPL §245.20(1)(k)(iv) as it relates to police officers’ disciplinary records. First, whether the statute requires disclosure of all misconduct complaints, regardless of the finding. Second, whether a mere list or summary of misconduct complaints is sufficient. The NYPD takes no position on the first issue, arguing only that, regardless of the finding, automatic discovery under this section requires the People to provide only a list.3 According to the NYPD, underlying records for misconduct complaints are only “discretionary” discovery and, as such, if defendants want to obtain those records they must follow the procedure detailed in CPL §245.30(3).4 1) Unsubstantiated Misconduct Complaints Must be Disclosed. While the NYPD’s motions raise no issue as to whether unsubstantiated findings must be provided under CPL §245.20(1)(k)(iv), this issue was litigated at some length prior to the issuance of the subpoenas. The People initially opposed providing even a list of unsubstantiated misconduct complaints; defendants argued for disclosure of all complaints, regardless of the findings. The court adheres to its prior oral rulings that to satisfy their discovery obligations, the People must disclose records regarding both substantiated and unsubstantiated misconduct complaints. According to the CCRB, an unsubstantiated finding is one where “the available evidence is insufficient to determine whether the officer did or did not commit the misconduct.” (https://www1.nyc.gov/site/ccrb/investigations/case-outcomes.page, last accessed April 30, 2021). The NYPD acknowledged using the same definitions in its investigations. Unlike truncated, exonerated, and unfounded complaints, the underlying facts of substantiated and unsubstantiated findings may provide a good faith basis for cross examination. (See People v. Randolph, 69 Misc3d 770 [Sup Ct, Suffolk County 2020]; see also, People v. Akhlaq, 2021 NY Slip Op 21060 [Sup Ct, Kings County 2021]; People v. Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., Indictment No. 01866-2019; People v. Cooper, 5 2021 NY Slip Op 21039 [County Ct, Erie County 2021]). 2) Underlying Records for both Substantiated and Unsubstantiated Misconduct Complaints Must be Provided In relevant part, CPL §245.20(1)(k)(iv) requires the prosecution to provide “[a]ll evidence and information…that tends to impeach…the credibility of a testifying prosecution witness….” In arguing that this subsection requires only a list, the NYPD relies on several cases that held the People’s automatic discovery obligations were satisfied by providing a summary of misconduct complaints without any underlying documents. (Davis, 70 Misc3d 467; accord Knight, 69 Misc 3d at 550; People v. Gonzalez, 68 Misc 3d 1213(A) [Sup Ct, Kings County 2020]; People v. Suprenant, 69 Misc 3d 685, 693 [Glen Falls City Court 2020]). This court respectfully disagrees with its colleagues. Because misconduct complaints may, in fact, be impeachment material (at least those complaints that have been substantiated or unsubstantiated), a summary that gives only a general description of that misconduct is not sufficient. Summaries, certainly the ones at issue here, lack any significant substance or detail about the nature or extent of the misconduct. Defendants are entitled to more. Defendants are entitled to detailed information so they can understand the specific nature and degree of the misconduct, determine its relevance to a particular defense, and prepare arguments as to its use on cross-examination at hearing and trial. The court holds that when the statute explicitly states “all” information and evidence that tends to impeach credibility, the statute means just that: all underlying records for substantiated and unsubstantiated misconduct complaints must be provided by the People. (See People v. Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., Indictment No. 01866-2019 [underlying documents must be provided], Green, supra [same], Randolph, supra [same], Cooper, supra [same], and People v. Porter, NYLJ 12/4/2020, page 21 [Crim Ct, Bronx County, November 4, 2020][disclosure letter not sufficient]). In so ruling, this court is compelled by the overarching legislative policy behind the discovery reforms which favor disclosure. The statutory language itself dictates that “[t]here shall be a presumption in favor of [openness and] disclosure when interpreting…section 245.20[1] of this article.” (CPL §245.20[7]). Significantly, the legislature’s repeal of Civil Rights Law §50-a, which neither enhanced nor diminished the People’s obligations under the discovery statute, further reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them. (See Randolph, 69 Misc3d at 771-72). Defendants’ arguments regarding the repeal of §50-a are also persuasive. If any citizen can now file a FOIL request for these records and (eventually) obtain them, it makes no sense that, in a criminal proceeding, the People’s obligations do not extend to providing records which are potential impeachment material for the police witnesses.6 Disclosure, however, does not presume use. Whether defendants may use any of these records at hearing or trial is a decision left to the sound discretion of the trial court. That court must balance the nature of the misconduct allegation, the police officer’s role in the case, and the possibility of prejudice or confusion. (People v. Rouse, 34 NY3d 269, 280 [2019]; see also People v. Smith, 27 NY3d 652, 660 [2016]).7 In support of its position that lists are sufficient, the NYPD argues that the revised discovery statute did nothing more than codify existing Brady/Giglio jurisprudence, which required only that “essential information” be provided. In this regard, the NYPD’s reliance on People v. LaValle (3 NY3d 88 [2004]) is misplaced. The defendant in Lavalle had direct personal knowledge of what was contained in the undisclosed witness statements that were at issue in that case. Here, defendants have no such knowledge regarding the underlying misconduct allegations. Despite the NYPD’s characterization, the lists fail to provide the essential information defendants need. (See People v. Shakeem Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., Indictment No. 01866-2019). Nor does the court agree that the statute merely codified existing Brady/Giglio law. (See People v. Shakeem Smith, supra [holding that new discovery statute broadened the People's obligations by eliminating Brady doctrine's materiality requirement]). On the contrary, the discovery statute now imposes upon the People an affirmative obligation to ferret out and ascertain whether any material responsive to the dictates of section one exists. (CPL §245.20[2]). Moreover, since the new discovery statute was meant to reduce discovery delays, it makes little sense to limit the required disclosure “and shift the burden to the defense to attempt to learn the specifics” of a misconduct complaint through a subpoena or a FOIL request. (Smith at 4). The NYPD’s argument that underlying records are not subject to automatic discovery also relies heavily on the prefatory language of CPL §245.20(1), which states: “[t]he prosecution shall disclose to the defendant…all items and information that relate to the subject matter of the case.” (Emphasis added). The statute goes on to detail an extensive but not exhaustive list of the material the People must provide. The NYPD argues that, because impeachment material is not “subject matter of the case,” there is no obligation to provide anything more than a list or summary of that material. This is wrong. While section 245.20(1) uses the language “subject matter of the case,” this cannot be interpreted to limit the People’s obligation to provide impeachment material under subsection CPL §245.20(1)(k)(iv). Impeachment evidence has never been restricted to material related only to the particular case, such as inconsistent statements, omissions, or misconduct. (See, e.g., People v. McCray, 23 NY3d 193 [2014] [mental health records]; People v. Hunter, 11 NY3d 1, 6 [2008] [concerning impeachment of the victim through previous, allegedly false, rape complaints]; People v. Williams, 7 NY3d 15 [2006] [Brady violation where People did not disclose that police witness lied before Grand Jury in unrelated case]). If this interpretation is accepted, the People would have no obligation to provide even substantiated misconduct complaints that were unrelated to the police officer’s conduct in the particular case. While reasonable judicial minds may differ as to the extent of the information necessary to satisfy the People’s obligations, it cannot be because that information is not technically the subject matter of the case. By arguing that underlying records are not related to the “subject matter of the case,” the NYPD seeks to exempt itself from the statute’s mandate that such materials are deemed to be in the possession of the People. Section 245.20(2) states in relevant part, “[f]or 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.” Whether “related to the prosecution of the case” is the same as “subject matter of the case” or has a broader meaning, this court rules that the records for substantiated and unsubstantiated misconduct complaints are impeachment material under CPL §245.20(1)(k)(iv) that are in the possession of the NYPD and are deemed to be in the People’s possession pursuant to the statute. As such, the NYPD must provide them to the People. Moreover, the NYPD’s position that the only way to obtain the underlying documents for misconduct complaints is the one detailed in CPL §245.30(3), or through a FOIL request, creates serious roadblocks to the People’s duty and ability to fully comply with their obligation to “make…diligent, good faith effort[s] to ascertain the existence of material or information discoverable under [§245.20(1)].” (CPL §245.20[2]). When pressed during oral argument on its position, the NYPD had to acknowledge that its interpretation would prevent the People from obtaining any records to determine if the records are impeachment material in the first instance. When questioned by this court as to how the People would ever be able to obtain the underlying documents, the NYPD posited that there was no mechanism for the People to do so, but for a FOIL request. This cannot be the case and borders on the absurd. The court also notes that the NYPD conveniently ignores the contradictory nature of its own argument. If this material is not automatically discoverable because it is not related to the subject matter of the case within the meaning of CPL §245.20(1), as the NYPD argues, then it cannot be obtained as discretionary discovery pursuant to CPL §245.30(3), which also requires that the information be related to the subject matter of the case. Finally, it should be noted that discretionary discovery pursuant to CPL §245.30(3) requires the court to find that the material or information sought is reasonably likely to be material. By signing the People’s subpoenas pursuant to CPL §610.20(4), this court has already determined that the underlying documents are reasonably likely to be relevant and material to the trials in these cases. Conclusion Based on the foregoing, the NYPD’s motions to quash the subpoenas are denied. The NYPD is directed to comply with this court’s subpoenas and provide the People with the underlying documents requested by the subpoenas. The foregoing constitutes the decision and order of the court. Dated: April 30, 2021
