The following papers read on this motion: Order to Show Cause X Notice of Motion X Affirmation XXXXXXXXXXXXXXX Memorandum of Law XXXXX Amicas Briefs X Upon the foregoing papers the Petition by Petitioners/Plaintiffs, brought by Order To Show Cause, for an Order pursuant to CPLR §7803[2]: (1) prohibiting co-respondent-defendant Judge Andrew M. Engel (hereinafter “Judge Engel”) from imposing upon petitioners-plaintiffs (hereinafter “Petitioners”) a duty not authorized by law to produce as a function of automatic disclosure or otherwise discovery obligation(s) the entirety of confidential police disciplinary files regarding all testifying police witnesses regardless of whether the documents within the file(s) are unrelated to the subject matter of the criminal proceeding pending before the Nassau County District Court, and relate to misconduct allegations that were determined to be “exonerated” “unfounded,” and “undetermined” lacking impeachment value as to the credibility of such witnesses; and (2) prohibiting Judge Engel from striking Certificates of Compliance (“COCs”) and Certificates of Readiness (“CORs) filed by the Office of the Nassau County District Attorney (hereinafter “NCDA) regarding criminal proceedings pending before his Court on the ground that the entirety of confidential disciplinary files were not disclosed to criminal defense attorneys and criminal defendants during discovery; (b) pursuant to CPLR article 63 and CPLR §7805, issuing a temporary restraining order and preliminary injunction staying and restraining Judge Engel from striking COCs and CORs, filed by the NCDA, regarding criminal proceedings before his Court pending a determination as to this hybrid proceeding and hybrid action; (c) pursuant to CPLR §3001, rendering a declaratory judgment that Petitioners do not a duty, as a function of automatic disclosure under Criminal Procedure Law §245.20[1]-[2], to produce the entirety of confidential police disciplinary files regarding all testifying police witnesses regardless of whether the documents within the file(s) are unrelated to the subject matter of the criminal proceeding pending before the Nassau County District Court, and relate to misconduct allegations that were determined to be “exonerated”, “unfounded”, and “undetermined” lacking impeachment value as to the credibility of such witnesses, is determined as hereinafter provided: The Court initially observes that Petitioners/Plaintiffs seek their requested relief pursuant to the provisions of Criminal Procedure Law (hereinafter referred to as CPL §245.10 et seq.) as to discovery which became effective as of January 1, 2020 and in particular the analysis of and applicability of said statutory provisions as interpreted and applied by Judge Andrew M. Engel a Judge of the Nassau County District Court. To substantiate the Petitioners/Plaintiffs contentions the Petitioners/Plaintiffs submit three decisions of Judge Engel, People v. Salters (August 20, 2021); People v. Pennant (October 15, 2021) and People v. Petrini (October 27, 2021) (collectively Exhibit D to the affirmation of Deputy County Attorney Laurel R. Kretzing. Of significance to the Petitioners/Plaintiffs requested relief, the Petitioners/Plaintiffs contend that said Decisions and Orders which individually and collectively strike the Nassau County District Attorney’s (NCDA) Certificate of Compliance and Certificate of Readiness and imperil the NCDA’s ability to prosecute cases in Judge Engel’s part. Judge Engel presides over cased involving defendants who have been charged with Driving While Intoxicated (DWI) and Driving Under the Influence (DUI). The Court further notes that while the respective parties submit various divergent trial level decisions and orders as to the parameters of discovery as of the date of this Order, there are no submitted appellate level decisions addressed to this issue. The Petitioners/Plaintiffs contend that Judge Engel has imposed the NCDA office a duty to provide to defendants with “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” (CPL 245.20 (k)(iv)). This subsection is preceded by an opening paragraph which states: (1) initial discovery for the defendant. The prosecution shall disclose to the defendant and permit the defendant to discovery, inspect, copy, photograph and test all items and information that relate to the subject matter of the case and are in the possession, custody or control to the prosecution or persons under the prosecution’s direction or control of the prosecution including but not limited to: (CPL 245.20(1). §245.20(2) provides that: “…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 deeded to be in the possession of the prosecution. The Petitioner/Plaintiffs contend that the requirement of Judge Engel that the NCDA provide all law enforcement disciplinary records of Nassau County Police Officers who will be testifying regardless of whether the records impeach the credibility of police officers who will be testifying and remove the ability of the NCDA’s to determine whether said records impeach the credibility of the witness. In substance the Petitioner/Plaintiffs argue that there is no statutory basis to provide records of testifying police officers in all disciplinary proceeding including those that are unfounded and/or are not supported by evidence and/or to search. Of significance to the foregoing §94 Statutes sets forth in pertinent part “…In the construction of statues, each word in the statute must be given its appropriate meaning and sense must be brought out of the words used. So the language employed in a statute should be given a reasonable and sensible construction to carry out if possible the intention of the Legislature. “The language of a statute is generally construed according to its natural and most obvious sense without restoring to an artificial or forced construction. So statutory language is to be re ad in accordance with its ordinary and accepted meaning, unless the legislature by definition or from the rest of the context of the statute provides a special meaning.” In order to proceed to trial the NCDA must file a Certificate of Compliance as a predicate to proceed to trial. The Certificate of Compliance sets forth that the NCDA has provided the discovery set forth in CPL 245.10 et seq. In this regard, the Court notes that CPL 20(7) states: “Presumption of openness. There shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25 and subdivision one of section 45.20 of this article”. This provision requiring a mandatory direction in the statute as required by the use of the term “shall” is described by the Hon. William C. Donning’s in the Practice Commentary as “…open file discovery or at least make “open file” discovery the far better course of action to assure compliance”. In the event that a privilege is claimed as to discovery, the statute provides for a protective order in CPL 245.70. The Court notes no application for a Protective Order was brought. Such an application would constitute an expedited appealable order to an appellate court pursuant to 245.70(6). Upon review of all of the foregoing, the Court observes that Judge Engel has complied with the statutory obligations set forth in CPL 245.10 et seq. As such, there is no basis for the Petitioners’ requested relief and said requested relief is denied in its entirety. All temporary restraining orders are accordingly vacated. SO ORDERED. Dated: March 16, 2022
