DECISION & ORDER By motion filed June 6, 2023, the New York City Police Department (“NYPD”) seeks to quash a Judicial Subpoena Duces Tecum issued by this Court on March 16, 2023, pursuant to Criminal Procedure Law (“CPL”) §610.20 and Civil Practice Law and Rules (“CPLR”) §§311 and 2304. Specifically, NYPD avers that defendant’s application must be denied as the information demanded by defendant is outside the scope of CPL §245.20 as it is beyond the legislative intent of the statute and caselaw on the issue; that the records sought are protected by both the public interest privilege and law enforcement privilege; and that, the information sought is regarding an unrelated criminal matter baring no relevance to the case at bar. On July 15, 2023, defendant filed an affirmation in opposition to the NYPD’s motion to quash the subpoena. Defendant avers that the NYPD does not address the guiding issue which is the Fifth and Sixth Amendments to the United States (“US”) Constitution, not §CPL 245; that defendant is entitled to the court-ordered contact information for potential rebuttal testimony and for information that counsel may utilize during cross-examination of the NYPD officers; that the NYPD has not met its minimum burden of reaching out to the respective complainants to inquire if they consent to their information being provided to defense counsel; and that the NYPD has not asserted that there are continuing pending investigations into the NYPD officers which justify an argument that revealing the complainant’s names/contact information would jeopardize an ongoing investigation. Defense counsel does not oppose an in-camera inspection of the documents in question but requests that both counsel for NYPD and defense counsel be present if the court orders said in-camera inspection. On August 16, 2023, the NYPD filed a reply to defendant’s opposition. In its reply, the NYPD avers that information previously provided by the Bronx District Attorney’s Office satisfies all requirements under the Fifth and Sixth Amendment rights to due process and confrontation, and that the NYPD has no burden to seek consent from the complaining witness in what they characterize as a completely unrelated criminal matter and reiterates the arguments originally raised in their June 6th motion papers. Upon review and consideration of the submissions, court file, and relevant legal authority, the Court finds that the NYPD has met its burden of establishing that the subpoena previously issued by this Court regarding the Internal Affairs Bureau (“IAB”) records will not uncover anything legitimate or obvious concerning the instant allegations, the criminal case, or even the credibility of the officer in question, in that the People have already provided defendant with sufficient information during the discovery process with which to impeach the officer or officers in question should they provide testimony contrary to the information previously provided. Accordingly, the NYPD’s motion to quash the Court’s judicial subpoena duces tecum is GRANTED. The subpoena issued by this Court is vacated and voided. PROCEDURAL BACKGROUND On February 25, 2022, defendant Darnel Winston was arrested and charged with violating Penal Law (“P.L.) §240.30 (1) (a) (aggravated harassment in the second degree), §120.14 (menacing in the second degree), §265.01 (2) (criminal possession of a weapon in the fourth degree), and §205.30 (resisting arrest), all misdemeanors. The People filed their Certificate of Compliance (“CoC”), Statement of Readiness (“SoR”) and supporting deposition (“SD”) on May 27, 2022. On June 17, 2022, defense counsel challenged the validity of the People’s CoC. After written motions, Hon. Christopher Chin ruled that the People’s CoC was invalid and ordered the People to disclose Gigliomaterials related to NYPD officers who were involved in the instant case. The People filed a Supplemental Certificate of Compliance (“SCoC”) on August 1, 2022. According to defense counsel’s affirmation seeking the issuance of a judicial subpoena, the People disclosed the disciplinary records as directed by Judge Chin. However, the People redacted the victim/complainants witnesses’ addresses, telephone numbers, emails, and other contact information. Said complainant witnesses were allegedly informants in an Internal Affairs investigation in an internal disciplinary case; the investigation’s target was the officer involved in the defendant’s arrest and, as a result, he may be summoned as a witness by the People in the criminal case against the defendant. On February 22, 2023, appearing before this Court, defense again objected to the People’s CoC arguing that they had not received CCRB information; that they had received heavily redacted materials from IAB; and that, although the People had turned over the Giglio materials as directed there was still information missing, that being the names and contact information for the underlying complaining witnesses to the disciplinary cases which are the subject of the subpoena the NYPD seeks to quash. Additionally, defense counsel argues that the Civilian Complaint Review Board (“CCRB”) materials which he received also include redacted information which he argued would be useful to cross-examine the People’s witnesses. The People’s CoC was deemed valid based on the People’s compliance with Judge Chin’s order and subsequent filings. This Court found that the People had exercised due diligence and had complied with the prior court order regarding said Giglio material. Further, this Court advised counsel that defendant could himself attempt to procure unredacted information regarding witnesses where CPL §245.20 (2) expressly provides that once the prosecution has been found to have made “diligent good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to [having] cause[d] such material or information to be made available,” the prosecution is not required to “obtain by subpoena duces tecummaterial or information which the defendant may thereby obtain” (see CPL §245.20 [2]). Thereafter, on March 16, 2023, defense counsel requested a judicial subpoena duces tecum be issued by this Court to the CCRB and the NYPD’s IAB. In support of his request, defense counsel affirmed under penalty of perjury that the information sought via subpoena was for the purpose of “undersigned [defense counsel] and/or his investigator can contact the victims/complainants/witnesses of the NYPD officers [sic] disciplinary proceedings for potential rebuttal information and witnesses” (Defense counsel’s affirmation in support of the issuance of a subpoena duces tecum — item 5). On June 20, 2023, the NYPD filed the instant motion. Defendant filed his opposition on July 14, 2023. The NYPD filed its reply on August 16, 2023. DISCUSSION I. Applicable Standard for Quashing a Judicial Duces Tecum Limited in scope, a motion to quash a subpoena generally challenges either the validity of the subpoena or the jurisdiction of the issuing authority (see Matter of Herlands v. Surpless, 282 NY 647, 648 [1939]; Matter of La Belle Creole Int., S.A. v. Attorney-General of State of N. Y., 10 NY2d 192, 196 [1961]; CPLR §2304). If the motion to quash is granted, the subpoena is vacated, and the process is voided (see Santangello v. People 38 NY2d 536, 539 [1976]). The court can also impose reasonable conditions upon granting or denial of a motion to quash or modify (see CPLR §2304). In addition, “[A]n order denying a motion to quash a subpoena is a final and appealable order” Niagara Mohawk Power Corp. v. Town of Moreau Assessor, 8 AD3d 935, 936(3d Dept 2004) citing Matter of Boikess v. Aspland, 24 NY2d 136, 138-139 [1969] and Matter of Pregent v. Hynes, 73 AD2d 722, 724 [1979]). It is settled law that “an application to quash a subpoena should be granted [o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious…or where the information sought is utterly irrelevant to any proper inquiry” (Anheuser-Busch, Inc. v. Abrams, 71 NY2d 327, 331-332 [1988] [internal quotation marks omitted]). Additionally, the burden of proof is on the party seeking to quash said subpoena, here the NYPD, to make the showing (see Kapon v. Koch, 23 NY3d 38, 39 [2014] ; Barber v. Borgwarner, Inc., 174 AD3d 1377, 1378 [2019]). II. The Parties’ Arguments The NYPD rests their motion to quash this Court’s subpoena on arguments that the information demanded exceeds the scope of the Article 245 of the Criminal Procedure Law, and the legislative intent behind it, and that the information sought is protected by both the public interest privilege and law enforcement privilege. Additionally, the NYPD avers that information previously provided by the Bronx District Attorney’s Office satisfies all requirements under the Fifth and Sixth Amendment right to due process and confrontation and it has no burden to seek consent from the complaining witness in what they characterize as a completely unrelated criminal matter. Defendant contends that he has a constitutional right, specifically the Fifth and Sixth Amendments of the US Constitution, to avail himself of the compulsory process as he is entitled to information regarding potential rebuttal testimony and information that can aid him to impeach the prosecution’s witnesses. Defendant further argues that the NYPD has not met its burden of reaching out to the persons whose contact information is in question before requesting the quashing of the subpoena and further avers that the NYPD did not assert that there are any continuing pending investigations of the NYPD officers which justify withholding the complainant’s names and contact information out of concern that disclosure would jeopardize an ongoing investigation. In its reply, the NYPD contends that the subpoena in question seeks the compulsion of identities of “complainant/victims in a completely unrelated internal affairs complaint from three years prior to [the] matter before this court” (NYPD’s reply at page 3). The contact information for the complainant relates to an unrelated case regarding an IAB complaint whereby the NYPD investigated an allegation that Detective Troia failed to properly investigate the assault of a minor; the underlying allegations are that the detective did not make himself available to her (complainant) regarding her son’s assault occurring in the Bronx. According to the NYPD’s reply, an investigation was conducted, and it was determined that the detective did conduct a thorough and complete investigation with the outcome being that the assailants of the complainant’s son could not be identified and, thus, no further police action was taken. (NYPD’s reply at page 3). The contents of the investigation were delivered to defendant with the complainant’s information redacted. The NYPD argues that compelling the unredacted disclosure of the complainant’s name and contact information would be a violation of privacy, contrary to sound public policy and would cast a chilling effect on witness/victims in the future (NYPD’s reply at page 3). The NYPD further argues that providing this information to defendant serves no purpose as the complainant is a layperson who is unfamiliar with police investigations let alone NYPD procedure and policies, and that the NYPD is the only entity who can be the arbiter of whether a member of the service acted in accordance with department regulations and policy (NYPD’s reply at page 4). Further, NYPD maintains that the underlying IAB log and investigation does not involve an issue of perjury or lying so as to facilitate any further impeachment by defendant. Additionally, the NYPD avers that all constitutional requirements raised by defendant have been met by the discovery already provided and any further information sought is irrelevant for potential rebuttal testimony (NYPD’s reply at page 5). III. The Court’s Analysis As a threshold matter, this Court must analyze and decide whether the moving party, the NYPD, met its burden of establishing “either that the discovery sought is ‘utterly irrelevant’ to the action[s] or that the ‘futility of the process to uncover anything legitimate is inevitable or obvious”(M&T Bank Corporation v. Moody’s Investors Services Inc., 191 AD3d 1288, 1291; Kapon v. Kochat at 34; see Wells Fargo Bank, N.A. v. Confino, 175 AD3d 533, 534-535 [2d Dept 2019]) . The NYPD’s initial submission, relying on arguments asserting law enforcement and public interest privilege, initially failed to address how the information sought is irrelevant. The investigation into disciplinary actions regarding an allegation of misconduct regarding officers who may be called as witnesses as well as officers who had a nexus to defendant’s case is relevant to the action in question, here, a criminal prosecution that includes, among others, the charge of resisting arrest. However, the Court here credits the NYPD’s reply to defense counsel’s opposition in which the NYPD makes compelling arguments regarding the information sought. The Court here finds that the information sought is irrelevant and will not uncover anything probative, legitimate or obvious. The Court also takes the position that information that is disclosed in the IAB logs is sufficient to allow defendant the opportunity to cross-examine the witnesses against him at trial. To be clear, the allegation which is the subject of the IAB log in question is not one of corruption or a failure of integrity but, instead, concerns an allegation that an officer failed to investigate an assault. However, the complaint, after a full investigation, was found to be unsubstantiated and, yet, defendant avers that he is entitled to disclosure of the complainant’s unredacted name and contact information. Assuming, arguendo, that the Court compels disclosure and defense counsel elects to call complainant in question as a rebuttal witness nothing that witness could offer would uncover anything probative regarding the impeachability or credibility of the officer in question since that IAB log does not involve an allegation concerning either credibility or integrity. The NYPD further argues that the information sought is outside the scope of CPL §245.20 because the “subpoena as written directly opposes the legislative intent of CPL §245.20 (1) regarding redactions of identifying information.” In this case, the information sought concerns IAB logs and investigations. Specifically, the name and contact information of the complainants in that IAB investigation which counsel representing the NYPD affirms was unsubstantiated. The NYPD has met its burden of establishing that the information defendant seeks to compel to be disclosed by the NYPD is utterly irrelevant to the action or that the process will not uncover anything tending to prove or disprove the facts at bar. Thus, the information sought exceeds the scope of CPL §245. Regarding this aspect, the People previously complied with the order of Judge Chin by turning over the Giglio material which provides defendant with sufficient information with which to impeach the officer in question. A. Compulsory Process and CPL §245 A defendant does not have an absolute right to compulsory process (see People v. Chipp, 75 NY2d 327, 337-338 [1990] cert. denied 498 US 833). Rather this is a trial right that enables the defendant to present facts to the trial jury (see Chipp supra at 336). Yet even at trial it is not an absolute right because the defendant has the burden of establishing the need for a witness’s testimony (see People v. Scott, 290 AD2d 522 [2002]; see also People v. Fox, 11 AD3d 709, 709-710; People v. Miller, 7 AD3d 815, 815-816; People v. Jackson, 7 AD3d 813, 814). Additionally, the Court of Appeals has balanced the interest between confidential data held by police departments, the privacy of citizens who come forward to complain about the actions of police officers, and defendant’s rights to compulsory process. In People v. Gissendanner, the court explained that the circumstances that support such demands may vary greatly; and that “though access must be afforded to otherwise confidential relevant data and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand” (see Gisendanner, 48 NY2d 543, 548 [1979][internal citations omitted]) Or when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial (see Gissendanner at 548) However, there is no such compulsion when requests to examine records are motivated by nothing more than impeachment of witnesses’ general credibility (Id.) It follows that the right to compel information via subpoena is therefore not absolute absent a showing that the information sought is relevant and material to the determination of guilt or innocence of the defendant as it relates to attempts or plans to call witnesses at trial. Here, defendant argues that he seeks the information to possibly call the complainant as a “rebuttal witness” and that the information sought is relevant because the officer in question alleges that defendant resisted arrest. The Court finds this argument to be without merit because the information regarding the officer’s actions which formed the subject of the IAB investigation have already been turned over to defendant during the discovery process. Even if the complainant were able to provide testimony regarding the occurrence in question, it is one in which neither the defendant nor the subject of the testimony was present, and it concerns an assault on a third party rather than an incident involving resisting arrest. The Court further agrees with the NYPD’s position that the civilian in question is a lay person who is unable to testify as to departmental policies and procedures. In essence, by calling this witness it appears that defendant would attempt to recreate disciplinary proceedings already addressed by the NYPD as they have fully investigated the underlying allegations. To the extent of any disciplinary action or lack thereof taken by the police department, defendant already has the relevant information which is that an investigation was conducted and resulted in unsubstantiated allegations. Admittedly, compulsory process is codified and available to defendants in CPL §245.20 (2), which allows defendants to obtain information that can help them impeach the credibility of the witnesses the People intend to call. (see CPL §245.20[2]). According to CPL §240.20 (2): The prosecution has a continuing duty to make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor’s possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. (emphasis added). (see People v. Lustig, 68 Misc 3d 234, 244 [Sup Ct, Queens County 2020]; CPL §245.20 [2]). This Court interprets CPL §245.20 (2) to codify the defendant’s right to compulsory process both for supplemental discovery that the prosecutor is not required to obtain and provide, for instance, CCRB and FDNY records from agencies that are not deemed to be within the control of the prosecution, but also makes compulsory process available to obtain documents which the prosecution has refused to turn over or, even if turned over, are missing information such as the redacted IAB cases in the instant case. However, this Court also interprets CPL §245 (2) to require that the information sought be relevant to the subject matter in question. As discussed herein, the unredacted information sought by defendant will not add anything of relevance to his defense since any information elicited from the complainant will bear no consequence on the charges the defendant is facing, nor will it be determinative of the officer’s credibility regarding the case at bar. The information sought, therefore, exceeds the scope of CPL §245 (2) and is, therefore, not subject to compulsory process. In the instant matter, the prosecution has already disclosed the information in their actual possession including names and information regarding persons other than law enforcement with knowledge of the alleged charge, among other discoverable items. The prosecution has previously been deemed to have exercised due diligence in this case and their CoC has been deemed valid. Since the Court has deemed the NYPD’s initial burden met and the Court addressed the constitutional issues raised by defendant regarding compulsory process, the issues raised of whether the unredacted information is protected by the public interest or law enforcement privilege, or whether the complainant’s permission is required for disclosure, are rendered moot. CONCLUSION Based upon the foregoing, the NYPD’s motion to quash the court’s judicial subpoena duces tecum is GRANTED. The foregoing constitutes the decision and order of the Court. Dated: September 11, 2023
