People v. Francis

The Defendants, each charged with gun offenses, seek various forms of relief under the discovery statute, including applications before this Court to compel the District Attorney to disclose and turn over to the defense the disciplinary personnel files of several officers of the Rochester Police Department. The Defendants,¹ through counsel, seek a determination from this Court, of the following: (1) whether Brighton Police Patrolman Association, et. al. v. Brighton Police Chief, David Cathodi, et. al. (Taddeo, JSC), is applicable to this matter; (2) whether the Monroe County District Attorney’s Office has met its obligation by use of the office’s Giglio committee, as it relates to CPL §245.20(1)(k)(iv); (3) whether the People, by referring the defendants to the Rochester Police Department’s database, have satisfied their disclosure obligations under CPL §245.20(1)(k)(iv); (4) whether the categories of dispositions, and procedures by which those dispositions are obtained, are sufficient to allow the Court to determine which of the documents and dispositions the People must disclose to the defense under CPL §245.20(1)(k)(iv); and (5), whether the methods, standards and/or procedures used by the Rochester Police Department’s Professional Standard Section (“PSS”) are sufficiently defined to allow the Court to make this determination. Defendant Francis moves that his indictment be dismissed on the grounds that the People failed to provide the defendant with his recorded interrogation at least 48 hours prior to the time he was scheduled to testify before the grand jury. Further, the Defendants request that this Court rule that the Rochester Police Department’s officer disciplinary records are in the “constructive possession” of the District Attorney’s Office. As part of the instant motion, the implications of the repeal of Civil Rights Law §50-a² comes into play, and whether the repeal of §50-a involves ex post facto concerns. Specifically, the Defendants ask this Court to find that the repeal of §50-a must be applied retroactively. Similarly, the Defendants argue that all records, reports and documents held by PSS be turned over in discovery, irrespective of whether any complaints in those files were determined to be “founded” or “substantiated.” Also related to the discovery issue, the Defendants maintain that disclosure of the District Attorney’s emails to officers involved in this case (wherein they request the officer/department disclose any exculpatory materials in their possession) does not alone satisfy the People’s discovery obligations under the new legislation, or under Brady v. Maryland and U.S. v. Giglio. In addition, the Defendants allege that the People have violated their obligation to provide impeachment materials under CPL §245.20(1)(k)(iv). Here, they argue that the City’s public-facing Rochester Police Department database is devoid of decisions in other cases, wherein the District Attorney’s Office appeared on behalf of the People, in which courts found that the People’s witnesses testified falsely or incredibly. Also, in relation to disclosure of impeachment materials, the Defendants ask the Court to find that the People have failed to satisfy their obligation under CPL §245.20(1)(k)(iv), by instead referring the defense to “public filings” in federal civil lawsuits in which police officers are named as defendants. Instead, the Defendants argue that in order for the District Attorney to comply with the statute, the People must obtain the underlying documents supporting the civil lawsuits, and provide those materials to the defense. Lastly, the Defendants argue that the People’s violation of their discovery obligations have rendered their statements of “readiness” illusory, and that as a result the People have failed to file a valid certificate of compliance based upon their failure to provide the defense with impeachment materials as required by CPL §245.20(1)(k)(iv). DEFENDANT’S MOTION TO DISMISS INDICTMENT BASEDON ALLEGED CPL 245.10(1)(c) VIOLATION In turning first to Defendant Francis’ motion to dismiss his indictment, the Defendant’s motion for dismissal is based upon the People’s failure to provide the Defendant with his recorded interrogation, at least 48 hours before the defendant was scheduled to testify before grand jury. In relevant part, CPL §245.10(1)(c) states: The prosecution shall disclose statements of the defendant as described in paragraph (a) of subdivision one of section 245.20 of this article to any defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense, which is a subject of a prospective or pending grand jury proceeding, no later than 48 hours before the time scheduled for the defendant to testify at a grand jury proceeding pursuant to subdivision five of section 190.50 of this part. (emphasis added). In support of his application the Defendant cites People v. McMillian, (71 Misc 3d 374 [Crim. Ct. Bronx County, 2021]. In McMillian, the People at arraignment notified the defendant in writing of their intention to present his case to a grand jury, and the defendant served written notice of his intent to exercise his right to testify before the grand jury (pursuant to CPL §190.50). However, that is not what occurred in this case. Here, the Defendant does not claim he ever notified the People of his intention to testify. Thus, the requirement to turn over defendant’s statement at least 48 hours before his scheduled time to testify was never triggered. Accordingly, the Defendant’s motion to dismiss the indictment for failure to provide defendant’s statements prior grand jury presentation, is hereby denied. DEFENDANT’S ARGUMENT THAT RPD DISCIPLINARY RECORDS ARE IN THE CONSTRUCTIVE POSSESSION OF THE DISTRICT ATTORNEY’S OFFICE Defendants next request that this Court find that the Rochester Police Department’s records concerning officer discipline, are in the “constructive possession” of the District Attorney’s Office. In holding that these records are in possession of the District Attorney, the Court in People v. Quinlan, 71 Misc 3d 266 (Crim. Ct., Bronx Co., 2021) explained: …CPL 245.20 (2) states, in pertinent part, that “[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.” This language is clear and unambiguous: regardless of whether the People have actual possession of discoverable material and information from law enforcement, such material and information is statutorily deemed to be in the People’s possession. The importance of this legislative mandate is supported by CPL §245.55 (1), which charges the People with “ensurs[ing] that a flow of information is maintained between [them and] the police and other investigative personnel.” In addition, CPL §245.55 (2) requires that “each New York state and local law enforcement agency shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with [article 245].” It was, therefore, improper for the People to file a certificate of compliance while acknowledging that some discoverable law enforcement materials and information had not been disclosed because they were not in their “actual possession. Quinlan, at 271-272. In People v. Cooper, 71 Misc 3d 559 (Erie Co. Ct., 2021), the Court (Eagan, J.) noted “it is undisputed that police personnel records are in the possession of the police. Therefore, possession of the records is imputed to the People.” This reasoning has likewise been applied in People v. Haymon, 71 Misc 3d 1203(a) (Albany Co. Ct., 2021). Similarly, in People v. Edwards, 73 Misc 3d 1206(A) (City of NY, Crim. Ct., 2021), the court held Moreover, the Legislature did not leave in serious doubt whether the People are, as a matter of law, in possession of police disciplinary records. In addressing the relationship between the prosecution and police, the Legislature deemed prosecutors to be in possession and control of material known to, and in possession of, the police. First, and most important, CPL §245.20(2) plainly states that, “[f]or purposes of [CPL §245.20(1)], 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.” Impeachment evidence is “related to the prosecution of a charge” for the same reason that impeachment evidence relates to “the subject matter of the case”: it directly relates to whether the factfinder should believe the witness’s testimony. This Court finds it hard to envision a more explicit statute than CPL §245.20(2), which states “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.” Insofar as this Court finds the language of CPL §245.20(2) to be clear and unequivocal, and based upon the above-referenced case authority, the Court finds that the People are indeed in the constructive possession of the Rochester Police Department’s officer disciplinary records. DEFENDANT’S ARGUMENT THAT REPEAL OF CIVIL RIGHTS LAW §50-a DOES NOT IMPLICATE EX POST FACTO ISSUES Defendant next asks this Court to find that the repeal of Civil Rights Law §50-a does not implicate ex post facto concerns. In Kellogg v. Travis (100 NY2d 407 [2003]), the Court explained ex post facto laws as follows: The Ex Post Facto Clause of the United States Constitution prohibits states from enacting laws that criminalize prior, then-innocent conduct; increase the punishments for past offenses; or eliminate defenses to charges for incidents that preceded the enactment (see Collins v. Youngblood, 497 U.S. 37, 42-43, 52, 110 S.Ct. 2715, 111 L.Ed.2d 30 [1990]; Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 [1925]; Calder v. Bull, 3 Dall. [3 U.S.] 386, 390, 1 L.Ed. 648 [1798] [op. of Chase, J.]) The prohibition on ex post facto laws applies only to penal statutes (see Youngblood,497 U.S. at 41 n. 2, 110 S.Ct. 2715); thus, where the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause. Kellogg, at 410. Despite the arguments set forth by the defendants, the repeal of Civil Rights Law §50-a does not implicate any of the ex post facto prohibitions defined by Kellogg. No new law has been enacted; rather, Civil Rights Law §50-a has simply been repealed. Therefore, the Court holds that no ex post facto concerns are implicated by the repeal of Civil Rights Law §50-a. EFFECT OF RETROACTIVITY ON REPEAL OF §50-a Next, Defendant asks for a ruling, by the Court, that the repeal of Civil Rights Law §50-a be given retroactive effect. The Court’s research reveals only two cases which seemingly address this issue: Brighton Police Patrolman Assoc. et al vs. Brighton Police Chief David Catholdi, et. al (Monroe County Supreme Court, Index No. I2020002814, April 16, 2021); and Puig v. City of Middletown, 71 Misc 3d 1098 (Orange Co. Ct., 2021). In Puig, supra, the Court held that the repeal of §50-a was to be applied retroactively.³ In forming this conclusion, the Court opined that since the repeal of §50-a was “remedial” in nature, then retroactivity applied.⁴ However, Puig stressed, in great detail, the general rule, in statutory construction, that “retroactive operation is not favored by courts, and statutes will not be given such construction unless the language expressly, or by necessary implication, requires it. Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978 (1998).” Puig, at 355.⁵ This Court agrees with Puig insofar as restates the fundamental tenets of statutory interpretation: a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature; that in any case of interpretation the court must always give effect to the plain meaning of the statute’s language; and that a statute is generally not to be given retroactive effect (unless expressly stated in the law). Also, as noted in Puig, this Court must also consider: has the Legislature made a specific pronouncement about retroactivity or conveyed a sense of urgency about the law’s passage? Was the statute designed to rewrite an unintended judicial interpretation? Does the enactment itself reaffirm a legislative judgment about what the law in question should be? Here, it is not insignificant that there is no “new” statutory language replacing the prior statute which would aid interpreting the prior law. Rather, the statute was merely repealed and not replaced. Further, the Legislature made no express statement in the repeal itself, or in the limited legislative history concerning the same, as to whether the repeal was to be applied retroactively. Nor has the Court found any controlling case law deciding the issue. See generally, Majewski v. Broadalbin-Perth Cent. School Dist., supra at 583-584. This calls for a brief review of statutory construction. NY Gen. Constr. Law §93 (“Effect of repealing statute upon existing rights”) provides [T]he repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected. In discussing Sections 93 and 94 of the General Construction Law (in a one paragraph per curium decision), the Court in People v. Roper (259 NY 635 [1932]) stated that these sections “provide merely a principle of construction to be applied in determining the scope of legislation which expressly or impliedly repeals earlier statutes…” and that …[i]n the absence of evidence of contrary intent, such legislation is not to be given retroactive effect. People ex rel. City of Buffalo v. New York Cent. & H. R. R. R. Co., 156 NY 570, 51 N. E. 312. They apply with special force to statutes which otherwise would be ex post facto or would deprive persons of substantial rights. Here the Legislature has reduced the maximum sentence which the court might impose upon conviction for robbery in the first degree. Such statutes have never been regarded as ex post facto laws. They are applicable to offenses previously committed. (Citations omitted). Many circumstances point unmistakably to the conclusion that such was the legislative intent here. Without question, former Civil Rights Law §50-a provided police officers substantial protections. In The Matter of New York Civ. Liberties Union v. New York City Police Dept., 32 NY3d. 556 (2018), the Court of Appeals detailed some of the substantial rights afforded police officers under §50-a. The law’s design was not only to preclude disclosure of materials in a pending litigation, but also “to prevent any ‘abusive exploitation of personally damaging information contained in officers’ personnel records’….” Matter of NYCLU, supra at 564 (citing Matter of Daily Gazette v. City of Schenectady, 93 NY2d at 154-155). In holding that §50-a exempted police officer disciplinary records from FOIL, the Court continued: “[T]he ‘decisive factor’ in determining whether a personnel record is exempted from FOIL disclosure under Civil Rights Law §50-a is ‘the potential use of the information,’ rather than ‘the specific purpose of the particular individual requesting access,’ or ‘whether the request was actually made in contemplation of litigation’ (Daily Gazette, 93 NY2d at 156-157 [emphasis added]).” Matter of NYCLU, supra at 564.⁶ This Court’s primary disagreement with Puig lie in its interpretation of the legislative intent behind the repeal of §50-a.Puig cites “New York Committee Report for 2019 NY Senate Bill 8496″ as the basis to support its belief that the repeal of Civil Rights Law §50-a should be applied retroactively. However, a closer reading of the justification language attached to the Committee Report reveals: Section 50-a of the New York State Civil Rights Law creates a special right of privacy for the “personnel records used to evaluate performance toward continued employment or promotion” of police officers, correction officers, and firefighters/paramedics employed by the State or political subdivisions, as well as those of peace officers working for the Department of Corrections and Community Supervision or local probation departments. This exemption was adopted in 1976 by the Legislature in order to prevent criminal defense attorneys from using these records in cross-examinations of police witnesses during criminal prosecutions. However, current law, as narrowly interpreted by the Court of Appeals, prevents access to both the records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings. According to the 2014 annual report by the State Committee on Open Government to the Governor and the State Legislature, “this narrow exemption has been expanded in the courts to allow police departments to withhold from the public virtually any record that contains any information that could conceivably be used to evaluate the performance of a police officer. Due to the interpretation of §50-a, records of complaints or findings of law enforcement misconduct that have not resulted in criminal charges against an officer are almost entirely inaccessible to the public or to victims of police brutality, excessive use of force, or other misconduct. The State Committee on Open Government has stated that §50-a “creates a legal shield that prohibits disclosure, even when it is known that misconduct has occurred.” FOIL’s public policy goals, which are to make government agencies and their employees accountable to the public, are thus undermined. Police-involved killings by law enforcement officials who have had histories of misconduct complaints, and in some cases recommendations of departmental charges, have increased the need to make these records more accessible. FOIL already provides that agencies may redact or withhold information whose disclosure would constitute an unwarranted invasion of privacy. Recent changes to the Civil Service Law have created additional, non-discretionary protections against the release of certain sensitive information such as contact information. Furthermore, this bill adds additional safeguards in the FOIL statute. Finally, courts have the ability to protect against improper cross-examination and determine if police records are admissible in a trial, without the denial of public access to information regarding police activity created by §50-a. The broad prohibition on disclosure created by §50-a is therefore unnecessary and can be repealed as contrary to public policy. Repeal of §50-a will help the public regain trust that law enforcement officers and agencies may be held accountable for misconduct. Notably, nowhere does the Committee Report mention “retroactive application” of the repeal of §50-a. As detailed above, this Court reaches a different conclusion than the Court in Puig. This Court believes that, based on the lack of direction by the Legislature on retroactivity; the application of NY Gen. Constr. Law §93; and the case law interpreting that section, compels this Court to conclude that the repeal of Civil Rights Law §50-a shall only be applied prospectively. In the 2018 annual report to the Governor and the Legislature by the “Committee on Open Government” (pp. 3-5), the report discusses the repeal of §50-a. While that discussion included a comment that the Committee had, for “several years,” called for the repeal or revision of Civil Rights Law §50-a, nowhere does the report mention retroactive application of repeal or revision. Secondly, while it is clear that the Legislature, in the justification language of Senate Bill 8496, was aware of its concerns surrounding §50-a, it nevertheless chose not to address retroactivity in §50-a’s repeal. In Brighton Police Patrolman Assoc. et al vs. Brighton Police Chief David Catholdi, supra, Justice Taddeo concluded that the repeal of §50-a was not to be imposed retroactively. Justice Taddeo found that, unlike in Kellogg v. Travis, supra (where there was “undisputably clear language of the statute” that the Legislature intended the relevant act to apply retroactively), there was no similar “undisputably clear language” in the repeal of §50-a. Additionally, there exists as well an equitable argument that §50-a’s repeal not be applied retroactively. From 1976 through 2020, §50-a protected from “public review”… …[A]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers…shall be 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. Civil Rights Law §50-a (1). Police officers relied upon that protection in making decisions on how to respond to disciplinary actions.⁷ Based on this Court’s experience, the Court can take judicial notice⁸ that police officers and the other protected persons have relied upon the sealed nature of personnel records in resolving disciplinary matters, just as an innocent person might accept an ACD to resolve a criminal record, knowing that such a disposition would keep the record sealed and avoid a criminal conviction. To now reach back and lay bare matters, where that officer believed such would not be subject to public view at the time disciplinary action was meted out, is, in the Court’s opinion, patently unfair. Accordingly, based on the foregoing, this Court concludes that the repeal of Civil Rights Law §50-a should not be applied retroactively. DEFENDANTS’ APPLICATION THAT ALL PSS RECORDS RELATING TO POLICE WITNESSES BE RULED DISCOVERABLE The Court now turns to Defendant’s request that the Court find that all records, reports and documents held by the Professional Standards Section (“PSS”), relating to the People’s police witnesses, be turned over, irrespective of the nature of disposition for those cases where a complaint was filed. In People v. Randolph (69 Misc 3d 770 [Sup. Court, Suffolk Co, 2020]), where the People argued that CPL Art. 245 did not require the People to obtain or produce unrelated internal affairs files on police witnesses, Justice Cohen generally agreed, emphasizing the meaning of the word “tends” as contained in CPL 245.20 (1)(k): “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.” (Emphasis added). Justice Cohen identified the possible outcomes of a police disciplinary action: “[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 their evidence establish that the act did not occur.” Randolph, supra at 772. Justice Cohen concluded that …[I]n 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 NY3d 652…; People v. Garrett, 23 NY3d 878…; People v. Brooks, 123 AD3d 448…; cf. People v. Rouse, 34 NY3d 269…; see also New York Guide to Evidence §6.17. Consequently, IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery. See People v. Knight, 69 Misc 3d 546…(Sup. Ct. Kings Cty., September 2, 2020); People v. Lustig, 68 Misc 3d 234…(Sup. Ct. Queens Cty. 2020). Randolph, supra at 727-728.⁹ This Court is persuaded by Justice Cohen’s reasoning in Randolph, and finds his conclusions more appropriate in the instant case. Limiting the release of disciplinary records, where the proceedings resulted in a negative finding, unprovable claim, or “no cause,” etc., follows the statutory language set forth in CPL 245.20 (1)(k)(iv) insofar as these findings do not contain conclusions which would tend to impeach the officer. Pending complaints raise another issue. Are the People required to turn over personnel files of pending disciplinary complaints or pending civil litigation? This Court finds the clear answer to be in the affirmative. In People v. Garrett, 23 NY3d 878 (2014) the Court held that the underlying facts of a pending federal litigation against a police officer constituted impeachment material. That holding would square the language in CPL Art. 245, that pending litigation or complaints of police misconduct would “tend to impeach,” as set forth in the statute, and thus would be required to be turned over. Therefore, this Court holds that the People are required to turn over only those internal affairs findings which have resulted in a negative finding against the officer; any claims deemed unsubstantiated; and any materials pertaining to a pending PSS hearing or civil litigation. PROSECUTOR’S EMAILS TO OFFICERS REQUESTING “SELF-REPORTING” OF EXCULPATORY MATERIALS Defendants then request the Court to find that the District Attorney’s practice of emailing to the police officer witnesses, and asking them to “self-report” the existence of exculpatory materials, does not satisfy the prosecutor’s obligations under the new legislation, or as required under Brady and Giglio. Based upon the rationale sent forth in People v. Bruni (71 Misc 3d 913 [Albany Co. Ct., 2021]), the Court finds that the prosecution’s procedure of sending e-mails to the officers involved in a matter, and asking the officer to review their files for exculpatory matters, is a sufficient practice not violative of Brady or Giglio. REQUESTS REGARDING ADDITIONAL IMPEACHMENT MATERIALS Prior findings of false or incredible testimony. The defendants further seek a ruling that the People have failed to satisfy their obligation under CPL §245.20 (1)(k)(iv), to provide impeachment materials, by failing to provide the Defendants with decisions in unrelated prosecutions, where the District Attorney’s Office appeared, and in which courts found that the police witnesses testified falsely or incredibly. While the parties have agreed that the production of any prior determinations of false or incredible testimony is a moot issue in this case (as none of the DA witnesses have previously testified falsely or incredibly), the Defendants nevertheless claim that irrespective of this case, the People have failed in their discovery obligation because the RPD’s disciplinary database does not contain decisions where the People’s witnesses have been found to have testified falsely or incredibly. However, the People have assured this Court that their office’s policy is to provide that information as circumstances dictate. No reading of CPL §245.20 (1)(k)(iv) shows a requirement that previous determinations of prior testimony deemed false or incredible be maintained in any particular database or portal. Insofar as the District Attorney’s Office is aware of their obligation to provide these materials, and stated they have fulfilled their obligation, the Court denies the Defendants’ motion. Public filings in federal civil lawsuits. Defendant seeks a ruling from this Court finding that the People had failed to satisfy their obligation to provide impeachment materials under CPL §245.20(1)(k)(iv), by referring the defense to public filings in federal civil lawsuits in which police officer witnesses are named as defendants. Instead, the Defendants seek an order to compel the District Attorney to provide copies of the underlying documents relating to such lawsuits that are in their possession. The Defendants offer no controlling authority to support this demand. The People have referred the Defendants to public filings in civil lawsuits in which police officers are named as defendants. This Court finds that the People have satisfied their discovery responsibilities by such practice. However, if in fact the Rochester Police Department possesses documents relating to such lawsuits, they shall hereafter be provided to the defendant in automatic discovery under CPL245.20 (1)(k)(iv). The Court also finds that any failure in providing such possessed documents, to date, has not been intentional, nor has it resulted in any prejudice to the Defendants. Therefore this court will not impose any sanction or strike the Certificate of Compliance on this issue. Certificate of Compliance. Lastly, Defendants asks this Court to rule on whether the People have failed to file a valid certificate of compliance, based upon their failure to provide the defense with the above-described impeachment materials under CPL §245.20(1)(k)(iv). This Court, however, finds that the People have not failed in their duty to provide discovery to the extent that invalidation of the Certificate of Compliance is required, and so rules. Hearings. Relating to the sufficiency of the People’s discovery obligations and the Defendant’s request for hearings, the Court hereby denies that application. This constitutes the Decision and Order of the Court. Dated: January 4, 2022