The People of the State of New York, Plaintiff, v Gavin Chisolm, Defendant.

County Court, Westchester County, February 21, 2020

Christopher P. Harold, White Plains, for Yonkers Police Captains, Lieutenants, and Sergeants Benevolent Association, nonparty.

Andrew C. Quinn, White Plains, for Yonkers Police Benevolent Association, nonparty.

John K. Grant, Newburgh, for Westchester County Department of Public Safety Police Benevolent Association, nonparty.

John M. Nonna, County Attorney, White Plains (Christopher J. Inzero of counsel), for Westchester County Department of Public Safety, nonparty.

Anthony A. Scarpino, Jr., District Attorney, White Plains (Julia Cornachio, Brian Bendish, Steven Bender and William Milaccio of counsel), for plaintiff.

Deveraux L. Cannick, Maspeth, for defendant.

Clare J. Degnan, The Legal Aid Society of Westchester County, White Plains, amicus curiae.

Gavin Chisolm (defendant) has been indicted for the crimes of manslaughter in the first degree pursuant to section 125.20 (1) of the Penal Law, assault in the second degree pursuant to Penal Law § 120.05 (4), assault in the second degree pursuant to Penal Law § 120.05 (6), criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (1), and criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03 (3). This decision and order is issued pursuant to motions to quash subpoenas duces tecum signed by this court in the defendant's case, filed by the Yonkers Police Captains, Lieutenants, and Sergeants Benevolent Association, the Yonkers Police Benevolent Association, the Westchester County Department of Public Safety Police Benevolent Association, and the Westchester County Attorney's Office.

The defendant was indicted by a Westchester County grand jury for the crimes of manslaughter in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree pursuant to a shooting that occurred in the vicinity of 44 Vark Street, Yonkers, New York, on January 29, 2019. The defendant is alleged to have shot a 17 year old in the chest, causing his death. Additionally, it is alleged that the defendant recklessly caused another individual to be shot, causing him pain and injury. The defendant, having been born on XX/XX/2002, is charged as an adolescent offender pursuant to New York's recent enactment of its Raise the Age legislation.

Having decided the defendant's omnibus motion, held suppression hearings, and made findings of fact and conclusions of law with respect to those hearings, the court set a trial date of January 7, 2020, for the case. However, the People were not ready to begin trial on January 7, 2020, due to their recent discovery that gunshot residue testing on certain pieces of evidence had not been conducted and requested an adjournment. {**67 Misc 3d at 461}The court adjourned the trial to January 13, 2020. On January 10, 2020, the People delivered a letter to the court, and copied defense counsel, enumerating several reasons why they would not be ready to try the matter on January 13, 2020, including the fact that they were not in compliance with the newly enacted CPL 245.20. Specifically, the People pointed out that they had been unable to comply with the "more expansive" disclosure requirements of CPL 245.20 (1) (k), and that in order to do so, they were requesting a court order directing all potential law enforcement witnesses to answer a series of six questions designed by the People to obtain certain information regarding any prior "civil lawsuits, prior adjudications of incredibility, administrative or civilian complaints, from the agency that investigated this case and from the officers themselves" which the police officers had "steadfastly refused to answer" (People's Jan. 10, 2020 correspondence at 3).^[FN1] In the alternative, the People indicated that they would subpoena all relevant police personnel records for an in camera inspection by the court in accordance with section 50-a (1) of the Civil Rights Law.

On January 13, 2020, a conference was held by the court at which the defendant, his attorney and the People appeared. At that time, in accordance with the People's request, the court signed orders requiring several members of the Yonkers Police Department and the Westchester County Department of Public Safety to answer the six questions (police witness 1k questionnaire). The questions included in the questionnaire are

"(1) Has the witness been convicted of a crime? (2) Is the witness aware of any pending criminal charge? (3) Is the witness aware of a finding/ruling by a Court about the truthfulness of the testimony of the witness? (4) Is the witness aware of any civil lawsuit filed concerning the conduct of the witness {**67 Misc 3d at 462}in this case? (5) Is the witness aware of any civil lawsuit about the conduct of the witness in a past case? (6) Is the witness aware of any other administrative, personnel or civilian complaints implicating the witness's honesty and integrity?" (Yonkers Police Benevolent Association mot to quash, exhibit B.)^[FN2]

Additionally, the court signed subpoenas duces tecum ordering the production of "any and all personnel records, including but not limited to all administrative, personnel or civilian complaints, and records of discipline, for judicial in-camera examination and disclosure to the defendant pursuant [to] CPL 245.20 (1) (k) (iv), 245.20 (2) and 245.35, for the prospective testifying police officers" (Yonkers Police Benevolent Association mot to quash, exhibit A).

The signed orders were served upon all relevant parties and on January 21, 2020, the Yonkers Police Captains, Lieutenants, and Sergeants Benevolent Association filed a motion to vacate the court's order and quash the subpoena. On the same date, the Yonkers Police Benevolent Association (YPBA) filed a notice of motion seeking to quash the subpoena. Also on January 21, 2020, this court signed an order to show cause submitted on behalf of the Westchester County Department of Public Safety Police Benevolent Association (WCDPSPBA) seeking an order prohibiting the release or disclosure to any party of the contents of or information contained within the personnel records of its members. Finally, on January 21, 2020, this court signed an order to show cause submitted by the Westchester County Attorney's Office seeking the identical relief.

The People have filed an affirmation in opposition, memorandum of law, and supplemental affirmation opposing the relief sought.

The defendant takes no position with respect to the motions to quash.

On February 14, 2020, Clare J. Degnan, Esq., Executive Director of The Legal Aid Society of Westchester County (LASW), filed a notice of motion seeking for this court to grant it leave to file a memorandum of law as amicus curiae. Attached to the notice of motion were an affirmation and memorandum{**67 Misc 3d at 463}of law in support of the motion for leave to file as amicus curiae, and opposing the relief sought by the Benevolent Associations in their motion to quash. According to LASW, its application should be granted since "[t]he Court's determination will affect not just defendant Gavin Chisholm [sic], but each individual defendant represented by the LASW, as well all [sic] criminal defendants throughout Westchester County and around the state" (LASW mem of law at 2). Additionally, LASW argues that its motion is appropriate given the fact that it has cases involving similar issues of discovery compliance.

All parties were given an opportunity to respond to LASW's application, with only the People filing a response, which consents to the participation of LASW as amicus curiae, but opposes LASW's position as to the motion to quash.

The court grants LASW's application for leave to file a memorandum of law as amicus curiae after finding that its brief "would otherwise be of special assistance to the court" (Kruger v Bloomberg, 1 Misc 3d 192, 198 [Sup Ct, NY County 2003]).

Although each of the Benevolent Associations has submitted its own papers with arguments that differ in their nuances, the thrusts of their arguments in support of the motions to quash are alike. In essence, they rely upon section 50-a of the Civil Rights Law, a law that protects the contents of police personnel records from disclosure. In sum, it is law enforcement's argument that their individual personnel records are protected from disclosure by Civil Rights Law § 50-a and that the subpoenas duces tecum signed by this court are overbroad and circumvent the statute's protections. Although the police contend that Civil Rights Law § 50-a shields them from having to answer the police witness 1k questionnaire, the police witnesses have been advised by their attorneys to answer all of the questions except number six. The police have been advised "to respond to the sixth question by 'declining to answer' in accordance with their rights under CRL § 50-a" (YPBA affirmation in support ¶ 4). That question, they contend, calls for information far in excess of what the People are required to disclose under CPL 245.20 (1) (k) (iv), what they describe to be a codification of the Court of Appeals' holding in People v Garrett (23 NY3d 878 [2014]). Had the legislature intended to enhance the People's obligation, the police assert, it would have affirmatively repealed Civil Rights Law § 50-a, a statute {**67 Misc 3d at 464}enacted to protect police from an onslaught of embarrassing and irrelevant questions during cross-examination.

Additionally, the police point out that the proper method of obtaining the sought after records is laid out in Civil Rights Law § 50-a, a method that they contend has been ignored by the People in requesting the orders and subpoenas at issue. They argue that a subpoena duces tecum for the in camera inspection of police personnel records can only be signed once the requesting party has established "a factual nexus between the requested documents and relevant and exculpatory evidence, as opposed to general impeachment material" (WCDPSPBA affirmation in support ¶ 18). If that nexus is established, it is then, and only then, that any party, including the People, can subpoena such records for an in camera inspection by the judge. Since this critical step was skipped, the police move for the subpoenas to be quashed.

In stark contrast, LASW argues that Civil Rights Law § 50-a is not implicated by the People's action in requesting the orders and the subpoenas, since under CPL 245.20, all documents in law enforcement's possession are deemed to be in the prosecutor's possession, including police personnel records. Therefore, they argue, the People should not even have to seek such orders—they should have unfettered access to the documents and information, and the police officers' failure to cooperate with the People in their attempt to obtain potential impeachment material is in direct contravention of the plain language and philosophy of CPL 245.20.

Moreover, LASW contends that Civil Rights Law § 50-a (4) gives the People access to police personnel records in furtherance of their official function. Since the People must comply with CPL 245.20 in order to prosecute a case, which would be an official function of a prosecutor, the People's right to the requested records falls squarely within the Civil Rights Law § 50-a (4) exception. Thus, the subpoenas, although unnecessary, are appropriate in order for the People to be in compliance with CPL 245.20 and the motion to quash must be denied.

Somewhere in the middle, the People urge the court to harmonize CPL 245.20 with Civil Rights Law § 50-a, striking a balance between the presumption of disclosure contemplated by the new discovery statute and the confidentiality of police personnel records guaranteed by Civil Rights Law § 50-a. The People contend that this balancing act is accomplished by recognizing the People's right to access police personnel records {**67 Misc 3d at 465}in furtherance of their official functions in accordance with Civil Rights Law § 50-a (4), arguing that complying with their discovery obligations and determining what material must be disclosed is a part of their official function. Unlike LASW, however, the People make a distinction between their access to the personnel records pursuant to Civil Rights Law § 50-a (4) and their control over them pursuant to CPL 245.20. Importantly, the People rely upon the language in CPL 245.20 to make this distinction, which deems only police records made in the course of an investigation and prosecution of a particular case to be within the possession or control of the prosecution. Thus, they argue, while Civil Rights Law § 50-a (4) gives them access to police personnel records, they do not possess them or have control over them, and are therefore obligated to inquire of the police officers regarding the impeachment material required to be disclosed under CPL 245.20 (1) (k). On that point, the People assert that there is no legal basis under Civil Rights Law § 50-a for the police officers to refuse to answer the questions in the police witness 1k questionnaire and that once they refused in the instant case, the People reasonably sought the valid orders and subpoenas, though not required to do so, in order to facilitate their discovery obligations.

Finally, while the People believe that CPL article 245 has enhanced their discovery obligations, the court need not determine the precise scope of the new discovery statute. Rather, the court need only decide the narrow issue of whether the confidentiality of police personnel records guaranteed by Civil Rights Law § 50-a protects the police officers from answering the questions contained in the police witness 1k questionnaire and bars the release of the personnel records pursuant to the subpoenas.

In an attempt to "eliminate the unfairness and inefficiencies" of the prior discovery rules in New York State and to "facilitate[ ] swift, efficient, and just disposition of criminal cases," sweeping legislation was passed in New York and effective on January 1, 2020 (Mem in Support of Legislation, 2017 NY Assembly Bill A4360-A). Discovery was only one element addressed by the historic criminal justice reform, which also overhauled the state's bail system. The new discovery statute guarantees automatic discovery of the vast majority of material contained within a prosecutor's file, and requires that the {**67 Misc 3d at 466}disclosure take place expeditiously. CPL 245.20 (1) requires that the prosecution disclose to the defendant "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" and goes on to list 21 items required to be disclosed (CPL 245.20 [1] [a]-[u]). Relevant to the case at bar is CPL 245.20 (1) (k) (iv), which requires the People to disclose "[a]ll 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 . . . impeach the credibility of a testifying prosecution witness." It is this provision of the new discovery statute that has given rise to the dispute herein. As to the timing of disclosure, all of the discoverable material enumerated in the statute is to be turned over "as soon as practicable but not later than fifteen calendar days after the defendant's arraignment on an indictment" and when "the discoverable materials are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution, the time period . . . may be stayed by up to an additional thirty calendar days" (CPL 245.10 [1] [a]).^[FN3] Notably, however, the material itemized in CPL 245.20 (1) (k) shall be disclosed "upon its receipt" and a prosecutor "shall not delay disclosure if it is obtained earlier than the time period for disclosure" noted above (CPL 245.20 [1] [k]).

Also germane to the case at bar is the section of the statute which defines the duties of the prosecutor in obtaining and sharing the materials. The statute requires that the prosecutor "make a diligent, good faith effort to ascertain the existence of material or information discoverable under [the statute] 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" with the caveat that "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL 245.20 [2]). Finally, in clarifying what material is deemed to be in the custody and control of the People, the statute declares that "all items and information related to the {**67 Misc 3d at 467}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" (id.).

Finally, in what appears to be the legislature's attempt to avoid a divide between the People and police, CPL 245.55 (1) addresses the "flow of information" between the prosecutor and law enforcement.

"The district attorney . . . shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense . . . charged" (CPL 245.55 [1]).

As if written in contemplation of the situation at bar, this section of the law specifically includes reference to "any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20" (id.).

It is with the plain language contained within CPL 245.20 in mind that this court must determine the narrow issue before it, to wit, whether or not the orders by the court for the police officers to answer the police witness 1k questionnaire and the subpoenas duces tecum requiring the production of the police officers' personnel records were lawfully issued. In answering these questions, the court agrees with the People that it need not make a determination as to whether or not CPL 245.20 (1) (k) (iv) broadens the People's disclosure obligation as it relates to impeachment material of police officers (see People v Garrett, 23 NY3d at 886 [finding that "civil allegations against" a police witness "were favorable to defendant as impeachment evidence"]; see also People v Smith, 27 NY3d 652 [2016]).

[1] In determining the motions before it, the court first considers the orders to the police witnesses to answer the questions contained in the police witness 1k questionnaire. The court is of the opinion that the disclosure requirements of CPL 245.20 (1) (k) (iv), combined with the precedents of Garrett and Smith, yield a determination that the questions contained in the People's police witness 1k questionnaire are relevant and wholly appropriate. While it is apparent that the police recognize the significance of each of the first five questions by answering them, it is also clear that contested question number six is appropriate, since it seeks any "administrative, personnel or civilian complaints implicating the witness's honesty {**67 Misc 3d at 468}and integrity"—matters which would undoubtedly have "the potential to undermine the credibility of a significant prosecution witness" (Gonzalez-Pena v Herbert, 369 F Supp 2d 376, 389 [WD NY 2005]). Moreover, when it comes to the testimony of a police witness, the Court of Appeals has emphasized that "law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination" (People v Smith, 27 NY3d 652, 661-662 [2016]). This means that cross-examination material revealing a witness' " 'untruthful bent' " is relevant and proper (id. at 661, quoting People v Walker, 83 NY2d 455, 461 [1994]). Given the potential impeachment material being sought by the 1k questions, together with the requirement for a free flow of information between the prosecutor and the police, and the duty upon the prosecutor to make a diligent, good faith effort to obtain the required impeachment material (see People v Garrett, 23 NY3d at 887, citing Kyles v Whitley, 514 US 419, 437-438 [1995]), the court finds that the practice of asking the police witnesses to answer the 1k questionnaire and the questions contained therein are appropriate and in accord with the underlying philosophy and purpose of CPL article 245.

Having made such a finding, the court must determine whether or not the application of Civil Rights Law § 50-a shields the officers from answering all of the questions. Civil Rights Law § 50-a (1) states that "[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department . . . shall be considered confidential and not subject to inspection or review" unless the subject officer gives "express written consent" or "as may be mandated by lawful court order." The statute goes on to explain that any such court order shall only be issued upon "a clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a [2]). Finally, if such a showing is established, the court shall order that the personnel records be sent directly to the court for an in camera inspection and "determination as to whether the records are relevant and material in the action" (Civil Rights Law § 50-a [3]). If the court determines that the records are relevant and material, then those relevant and material parts are disclosed to the party making the request (id.). Notably, this statutory scheme "fairly reflects the pre-existing judicial consensus" outlined in People v Gissendanner (48 NY2d 543, 551 [1979]), a Court of Appeals decision that was written {**67 Misc 3d at 469}after the enactment of Civil Rights Law § 50-a, which addressed the propriety of a conviction that took place before the statute's enactment.

The court finds that Civil Rights Law § 50-a does not shield the police from having to answer the police witness 1k questions for several reasons. First and foremost, the statutory text of Civil Rights Law § 50-a protects records, not information (see Matter of Patrolmen's Benevolent Assn. of the City of N.Y. v de Blasio, 171 AD3d 636 [1st Dept 2019] [body-worn camera footage is not a personnel record under Civil Rights Law § 50-a since it does not amount to a document which is utilized in determining continued employment or promotion]; see also Matter of Capital Newspapers Div. of Hearst Corp. v City of Albany, 63 AD3d 1336, 1338-1339 [3d Dept 2009] ["gun tags that include the names of current or former police officers are personnel records" since they "may be used to implicate officers in misconduct" and "could be used to impose discipline or affect continued employment or promotions"]).

Additionally, it would be inconceivable to imagine that the legislature did not intend for the free flow of information requirement contained within CPL 245.55 to impose a burden upon the police to participate in the exchange of information. This is particularly true considering the purpose of the legislation was to promote openness, fairness, and efficiency. None of those goals could be accomplished without the unbound cooperation of law enforcement.

Accordingly, the court finds the motions to vacate the court's order for the named police officers to answer the questions contained within the police witness 1k questionnaire to be without merit and, as such, the motions are denied.

Significantly, once the police witnesses answer all of the questions contained in the police witness 1k questionnaire, one of two possible scenarios will ensue. The first scenario is one in which all of the police witnesses answer the 1k questions in the negative. Under this scenario, the People have fulfilled their duty and the inquiry ends. The court does not find that the People would have any obligation, or reason, to obtain, by subpoena or otherwise, the personnel records under this scenario. Furthermore, the court does not read CPL 245.20 to mean that all records in the possession of the police department, including personnel records, are deemed to be in the custody and control of the People, as LASW urges the court to do. Under such a reading, it could be said that the People would {**67 Misc 3d at 470}be under the obligation to turn over every police witness' personnel record in every case—an unreasonable and excessive obligation that this court is not willing to impose. To be sure, CPL 245.20 (2) qualifies the information imputed to the People to be that which is related to the prosecution of a charge. Notably, the personnel records at issue were not created for the purposes of the prosecution of the underlying charges, but for the purposes of the police department's administrative duties. Indeed, there could very well be documents contained in the personnel records that long predate the incident leading to this indictment. Had the legislature intended to impute all information in the possession of the police to the prosecutor, it would have eliminated this qualifier.

In a similar analysis, the Court of Appeals made a "distinction between the nondisclosure of police misconduct 'which has some bearing on the case against the defendant,' and the nondisclosure of such material which has 'no relationship to the case against the defendant, except insofar as it would be used for impeachment purposes' " (Garrett at 889, citing People v Vasquez, 214 AD2d 93, 100 [1st Dept 1995]). The Court found that "[i]n the latter circumstance, the offending officer is not acting as 'an arm of the prosecution' when he or she commits the misconduct, and the agency principles underlying the imputed knowledge rule are not implicated" (id. [citation omitted]).

Moreover, the court refuses to assume that in passing CPL article 245, the legislature had any intention of repealing Civil Rights Law § 50-a and eliminating the sanctity and confidentiality of police personnel records and the legally accepted method for obtaining and disclosing them. It has long been established by New York courts that "[r]epeal or modification of legislation by implication is not favored in the law" and that such repeal by implication will only be assumed when the two statutes "are in such conflict that both cannot be given effect" (Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 195 [1988]; see also Alweis v Evans, 69 NY2d 199 [1987]; Matter of Board of Educ. of City of N.Y. v Allen, 6 NY2d 127 [1959]). Such conflict does not exist here, as the two statutes may "be read together and applied harmoniously and consistently" (Consolidated Edison Co. of N.Y., 71 NY2d at 195, citing Alweis v Evans, 69 NY2d at 204).

Under the second scenario, in which any police witness answers any of the questions in the police witness 1k questionnaire{**67 Misc 3d at 471} in the affirmative, the People then must decide how to proceed with obtaining the specific information underlying the witness' answer and disclosing that information to the defense in accordance with their obligations under CPL 245.20 (1) (k) (iv). While the court need not address precisely how that should be accomplished, it would seem that if the information sought by the People is contained in the officer's personnel records, the People would be able to establish a showing of facts sufficient to warrant an in camera inspection of those records pursuant to Civil Rights Law § 50-a (3). It would then be up to the judge to review the records and determine whether they "are relevant and material in the action" and if so, release the relevant and material portions of the records to the People for disclosure to the defendant (Civil Rights Law § 50-a [3]). In response to the argument advanced by the police that disclosure of their personnel records will lead to embarrassing, irrelevant, and exploitative cross-examination, it is worth noting that even after the disclosure of material portions of personnel records to the defendant, the court remains the gatekeeper of cross-examination and will use its "inherent power to control [its] scope" (People v Smith, 27 NY3d at 663, quoting People v Walker, 83 NY2d at 459). In other words, simply possessing the potentially impeaching material does not give a defendant an unfettered opportunity to use, or abuse it.

[2] The disputed subpoenas were not issued in accordance with the procedure laid out in Civil Rights Law § 50-a (2). Now, the People argue that such a procedure, as well as the subpoenas, is unnecessary, given the People's access to personnel records under Civil Rights Law § 50-a (4), which states that the earlier provision of the statute "shall not apply to any district attorney or his assistants . . . in the furtherance of their official functions." In their papers, the People argue that since determining what is discoverable information during the course of a prosecution is a part of a prosecutor's official functions, Civil Rights Law § 50-a (4) grants them access to the personnel records under the current circumstances. However, at the time that the subpoenas were issued, this was not the People's position. The subpoenas were sought, and issued, pursuant to Civil Rights Law § 50-a (1) (see People's Jan. 10, 2020 correspondence at 3 ["While the People are granted access to police personnel records under certain circumstance(s) . . . our use of such materials including disclosure of them to a criminal defendant must adhere to the requirements and purposes {**67 Misc 3d at 472}of 50-a (1)" (citations omitted)]). Thus, since the procedure required by Civil Rights Law § 50-a (2) was not adhered to, the motions to quash the subpoenas are granted.

Accordingly, it is hereby ordered that the applications by the Yonkers Police Captains, Lieutenants, and Sergeants Benevolent Association, the Yonkers Police Benevolent Association, the Westchester County Department of Public Safety Police Benevolent Association, and the Westchester County Attorney's Office to vacate the January 13, 2020 orders issued by this court directing the named, testifying officers to answer the proposed 1k questionnaire are denied; and it is further ordered that the applications by the Yonkers Police Captains, Lieutenants, and Sergeants Benevolent Association, the Yonkers Police Benevolent Association, the Westchester County Department of Public Safety Police Benevolent Association, and the Westchester County Attorney's Office to quash the January 13, 2020 subpoenas duces tecum seeking the production of any and all personnel records, including, but not limited to all administrative, personnel, or civilian complaints, and records of discipline, for judicial in camera examination and disclosure to the defendant are granted.