Supreme Court, Suffolk County, September 15, 2020

Peter H. Mayer and Ian Fitzgerald for defendant.

Timothy D. Sini, District Attorney (Jacob De Lauter and Carl Borelli of counsel), for plaintiff.

Upon the continued application of the defendant to strike the People's certificate of compliance which was filed in compliance with CPL 245.50 based upon the failure to provide discovery required by subdivision (1) of section 245.20, the People argue that CPL article 245 does not require the People to obtain or produce unrelated Suffolk County Police Department Internal Affairs Bureau (IAB) files on police witnesses.

Pursuant to CPL 245.20 (1) (k), as part of automatic initial discovery, the People must provide "[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: . . . (iv) impeach the credibility of a testifying prosecution witness." The People claim this language is limited by CPL 245.20 (2) ("[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"). Initially, it is noted that CPL 245.20 (1) provides that discovery material includes all items and information that "are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." Moreover, the word "tends" should limit [*2]the disclosure. (CPL 245.20 [1] [k].) The question presented for the court is considered against the background of the recent repeal of Civil Rights Law § 50-a effective June 12, 2020, which eliminated any claim of confidentiality in IAB files. (Cf. Uniformed Fire Officers Assn. v DeBlasio, 2020 WL 4391302, 2020 US Dist LEXIS 138592 [SD NY, July 30, 2020, 20-cv-05441 (KPF) (RWL)] [appeal filed (2d Cir, Aug. 24, 2020)].) The legislative history of the repeal indicates that the original passage of Civil Rights Law § 50-a was enacted "in order to prevent criminal defense attorneys from using these records in cross-examinations of police witnesses during criminal prosecutions{**69 Misc 3d at 772} [and] . . . narrowly interpreted [to] prevent[ ] access to both the records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings." (2020 McKinney's Session Law News of NY, No. 2 at A-202.) Furthermore, the decision in this case must respect the legislative intent that there "shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article." (CPL 245.20 [7].)

The court agrees that the proper decision rests upon the statutory word "tends."^[FN1] As the People note, 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 there is evidence to establish that the act did not occur. Therefore, in 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 [2016]; People v Garrett, 23 NY3d 878 [2014]; People v Brooks, 123 AD3d 448 [2014]; cf. People v Rouse, 34 NY3d 269 [2019]; see also Guide to NY Evid rule 6.17, Impeachment by Instances of Misconduct, https://www.nycourts.gov/JUDGES/evidence/6-WITNESSES/6.17_IMPEACHMENT_BY_MISCONDUCT.pdf.) 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 County 2020]; People v Lustig, 68 Misc 3d 234 [Sup Ct, Queens County, Apr. 28, 2020].)

As to information required to be produced in substantiated and unsubstantiated IAB files, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. The People thus may seek an in limine ruling to preclude any cross-examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness's credibility or there is no good faith basis for the inquiry.{**69 Misc 3d at 773}

This ruling, of course, does not limit the defendant to seek any such information under the Freedom of Information Law (FOIL) (Public Officers Law § 87)^[FN2] or by other methods. (See People v Suprenant, 69 Misc 3d 685 [Glens Falls City Ct 2020].)

The People note that providing the IAB files may be unduly burdensome. Initially, such determination should be made on a case by case basis, not as a general determination, to deny [*3]discovery. Furthermore, the statute provides for expanded time for the People to obtain the information if such material is voluminous or not in their actual possession. (CPL 245.10 [1] [a].)

Also, if the files contain any material which should not be disclosed, the People have the availability to seek a protective order. (CPL 245.70.)

Since the People have been acting in good faith and have provided discovery in harmony with their understanding of the requirements, at this juncture there is no basis to strike the certificate of compliance or impose other sanctions.^[FN3] The People must provide any available IAB files, in any form, involving any witness that they intend in good faith to call at a hearing and/or trial to the defendant involving substantiated or unsubstantiated allegations on or before September 22, 2020. Personal information, such as social security numbers and tax numbers, may be redacted. (CPL 245.20 [6]; cf. Public Officers Law § 89 [2] [b].)