Supreme Court, Columbia County, November 24, 2021

Jeffrey P. Mans, Albany, for petitioners/plaintiffs.

Hinman Straub P.C., Albany (Elena DeFio Kean of counsel), for Shane Bower and others, respondents/defendants.

Paul Czajka, District Attorney, Hudson, respondent/defendant pro se.

The petitioners/plaintiffs (petitioners) bring this CPLR article 78 petition by order to show cause seeking a permanent injunction enjoining and preventing the respondents/defendants (respondents) City of Hudson Police Department (Hudson PD) and City of Hudson (City) from releasing to the respondent/defendant (respondent) District Attorney of Columbia County (DA) records contained in the personnel, disciplinary, or other employee files maintained by the City and the Hudson{**73 Misc 3d at 1065} PD that contain allegations or complaints that did not result in any discipline, that have been determined to be unfounded or unsubstantiated, and/or which have resulted in exoneration, including memos, notices, notice of discipline/potential charges, any records or investigative materials related thereto, and any settlement agreement that contains confidentiality provisions prohibiting disclosure. The petitioners were granted a temporary restraining order by order dated October 26, 2021, pending a final determination on the petition/complaint.

By letter dated June 28, 2021, the DA confirmed an agreement with the Hudson PD that it would disclose to his "office all disciplinary records of HPD members, including final determinations for founded and unsubstantiated allegations, as well as any underlying investigative materials that exist."

The petitioners argue that they were advised by the Hudson PD that it intended to provide the complete employment files of the officers of the Department to the DA. The petitioners argue that disclosure of this nature is an unwarranted invasion of personal privacy and could endanger the life or safety of the petitioners' members and their families in violation of Public Officers Law § 87 (2) (b) and (f). The petitioners argue that the materials are non-disclosable even under Criminal Procedure Law § 245.20. Such disclosure will irreparably damage the individual members' professional and personal reputations. The petitioners argue as well that they have a reasonable expectation of privacy under Public Officers Law § 87, Civil Rights Law § 50-a (now repealed), and prior negotiated settlement agreements, and by virtue of the terms of their collective bargaining agreement with the City.

The respondent DA opposes the application, asserting that the petitioners failed to join necessary parties—namely "persons arrested by the Hudson City Police Department" and the Attorney General. The DA also asserts that the petitioners have not satisfied the requirements necessary for injunctive relief. The DA, as well as the respondent Hudson PD and City, argues that disclosure of these materials is required pursuant to Criminal Procedure Law § 245.20 (1) (k) (iv). The DA asserts that, not only is this practice in keeping with his duty to release these materials to the defense, the Hudson PD and also the New York State Police have specifically agreed to release these materials to his office. The City and the Hudson PD note that they have had discussions with the petitioners' union representatives on this issue, have advised them that no personal{**73 Misc 3d at 1066} information is ever released, and have offered to allow any member to look at his or her records prior to disclosure—which the petitioners to date have not asked to do.

For the reasons that follow the court grants the petition in part, and denies the petition in part.

[1] Turning first to the issue raised by the DA—that "persons arrested by the Hudson Police Department" are necessary parties—the court is mindful that

"CPLR 1001 (a) provides, in relevant part, that any individual or entity who might be inequitably affected by a judgment in a [*3]proceeding, or who ought to be a party if complete relief is to be accorded between those who are parties to the proceeding, shall be named as a necessary party" (Matter of Farrell v City of Kingston, 156 AD3d 1269, 1270-1271 [3d Dept 2017]).

This said, the DA has not provided specific information about who the purported necessary parties actually are, and beyond the bald claim that all unnamed persons arrested by the Hudson PD and also the Attorney General are necessary parties, he has simply failed to provide the court with "sufficient evidence to raise an issue of fact with respect to the defense" (Becker v Elm A.C. Corp., 143 AD2d 965, 965-966 [2d Dept 1988]). This proceeding does not involve any effort by the petitioners to defeat any public purpose that would require the Attorney General to be named as a party. All said, on this record, the court declines to find that all persons arrested by the Hudson PD, and also the Attorney General, are necessary parties to be joined (CPLR 1001 [a]).

CPL article 245, effective January 1, 2020,

"significantly expanded the People's discovery obligations . . . [making them] so broad as to virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance . . . [and placing] the affirmative obligation on the People to comply with their automatic discovery obligations, as set forth in CPL 245.10 and 245.20 (1) (a)-(u)" (People v Pennant, 73 Misc 3d 753, 755-756 [Nassau Dist Ct, 1st Dist 2021] [citations and some internal quotation marks omitted]).

Discovery is required of all materials which may be used by the defense to "impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]). The statute is not merely{**73 Misc 3d at 1067} a codification of the disclosure rules of Brady v Maryland (373 US 83 [1963]) and/or Giglio v United States (405 US 150 [1972]) as it mandates "a presumption in favor of disclosure" (People v Porter, 71 Misc 3d 187, 190 [Crim Ct, Bronx County 2020]; People v Georgiopoulos, 71 Misc 3d 1215[A], 2021 NY Slip Op 50380[U] [Sup Ct, Queens County 2021]). Significantly, the statute abandons the materiality requirement, and instead requires all evidence and information that tends to impeach the credibility of a witness be provided to the defense, and it is not for the People to decide if a particular item might be admissible or might impeach a witness. The DA's discovery obligation includes "any record created in furtherance of a law enforcement disciplinary proceeding" (People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U], *3 [Nassau Dist Ct, 1st Dist 2021]).

Here, the court is mindful that a defendant's discovery rights arise when "an indictment, superior court information, information, or simplified information charging a misdemeanor is pending" (CPL former 240.20; People v Leftenant, 175 Misc 2d 605 [Suffolk County Ct 1998]), and that the DA does have the "duty to learn of favorable evidence known to those acting on the government's behalf" which applies to information that "directly relates to the prosecution or investigation of the defendant's case" (People v Garrett, 23 NY3d 878, 888 [2014] [internal quotation marks omitted]).

What "directly relates to the prosecution or investigation of the defendant's case" is currently the subject of much debate in the lower courts. For every case that supports the interpretation that unfounded or exonerated disciplinary claims against police officers are not required to be produced, as they lack impeachment value, there is another case that disagrees or declines to follow it (e.g. People v Davis, 70 Misc 3d 467 [Crim Ct, Bronx County 2020], declined to be followed by People v Castellanos, 72 Misc 3d 371 [Sup Ct, Bronx County 2021]; People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020], declined to be extended by People v Herrera; People v Lustig, 68 Misc 3d 234 [Sup Ct, Queens County 2020], declined to be followed by People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U] [Crim Ct, NY County 2021]; People [*4]v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020], disagreed with by People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020]; People v Mauro, 71 Misc 3d 548 [Westchester County Ct 2021], disagreed with by People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021]).

{**73 Misc 3d at 1068}Although there may be no current consensus that disciplinary records concerning unsubstantiated or unfounded complaints must be disclosed to a District Attorney pursuant to CPL 245.20 (1) (k) (iv), this court finds that broad and all-inclusive discovery was the intent of the legislature when it enacted CPL article 245, and that all personnel and employment records and substantiated or unsubstantiated complaints must be provided to the defense.^[FN1] This necessarily flows from the express language of CPL 245.20 (1) (k) (iv)—which mandates the disclosure of "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness"—and also the repeal of Civil Rights Law § 50-a—which now makes available to the public all law enforcement disciplinary proceedings. All said, in order to comply with CPL article 245—and while it is not up to a District Attorney to decide if a particular item in a disciplinary record may be admissible or may impeach a witness—the plain language of the statute requires the DA be provided with all allegations, as well as the files, records or other materials "in tangible form" on which substantiated disciplinary findings against a police officer are based (People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U], *4).

[2] The court does find, however, that the DA, and by implication, the City and the Hudson PD, have misinterpreted Criminal Procedure Law § 245.20 to the extent that the DA requests the production of records which are not the subject of a current criminal prosecution. The court does acknowledge that CPL 245.20 (2) deems material in the possession of the police to be in the possession of the prosecution. The court also acknowledges that the legislature mandated that upon the People's request, the police files be made available to the prosecution (CPL 245.55 [2]). There is nothing in the language of CPL 245.20 that allows for, much less requires, the DA to request personnel files absent an ongoing criminal proceeding. There is absolutely no authority for the position of the DA that his office become a repository for all police disciplinary records, substantiated and unsubstantiated. What the statute does require is that open file discovery be provided—it includes a detailed list {**73 Misc 3d at 1069}of what must be produced—and the prosecution must diligently look for the information, such as names and adequate contact information for all persons other than law enforcement who the prosecutor knows has evidence or information relative to the offense charged. What the prosecuting agency must do under CPL 245.55 (1) is

"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 or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article."

While a criminal defendant does have a right to impeachment material, that right does not [*5]arise until such time as a prosecutorial instrument has been filed, and it is certainly not the responsibility of the DA to marshal together every police officer's employment and personnel files to "protect that right," a right which may or may not arise. To do so would be a chain of custody nightmare with the ever present possibility of abuse and the appearance of impropriety.^[FN2]

Here, the DA is impermissibly making himself and his office the repository of every bad act, founded or unfounded, of every law enforcement officer in the County of Columbia, rather than putting into place the mechanisms to ensure the flow of current discoverable material specific to a particular case and to only those police officers specific to the case.

The only obligation of the DA is to use due diligence to ascertain the existence of material or information discoverable and to cause such information to become available to the defense when a defense becomes necessary (CPL 245.20 [2]). The statute does not require the prosecutor to subpoena the discovery materials, rather, if they are known to the defense to be obtained that way.

Lastly, the court is not persuaded by the email exchange between the DA and the New York State Police, described as "an {**73 Misc 3d at 1070}agreement" for the unfettered access by the District Attorney's Office to records which are not the subject of a pending criminal case. In any event, the court specifically notes that paragraph three of the "agreement" leaves open the possibility that the DA may choose the "case specific" approach, which is only what he is entitled to.

Turning to the petition and the requested relief, the court is mindful

"[t]o sufficiently plead a cause of action for a permanent injunction . . . [the petitioner] must allege that there was a violation of a right presently occurring, or threatened and imminent, that he or she has no adequate remedy at law, that serious and irreparable harm will result absent the injunction, and that the equities are balanced in his or her favor" (Aponte v Estate of Aponte, 172 AD3d 970, 974 [2d Dept 2019] [internal quotation marks omitted]).

On this record, the petitioners have established their entitlement to a permanent injunction, enjoining the District Attorney of the County of Columbia from requiring the production of any police disciplinary files which are not related to or the subject of a current pending criminal prosecution. That the DA is in possession of both substantiated and non-substantiated disciplinary proceedings against Hudson PD officers, with no corresponding prosecutorial instrument, poses a real likelihood of injury, notwithstanding the DA's representation that personal identifying information is not being used. The possibility of irreparable harm to officers who are not implicated in any ongoing criminal prosecution by the use of this unfettered amassing of information in one county agency has serious implications, especially in light of the fact that it is unnecessary and impermissible.

Accordingly, it is ordered that the petitioners/plaintiffs' petition is granted to the extent that respondent City of Hudson and Hudson Police Department are permanently enjoined from providing to the Columbia County District Attorney any disciplinary files which are not the subject of a [*6]prosecutory instrument; and to the extent that any have been received by the Columbia County District Attorney, they are to be immediately returned; and it is further ordered that petitioners/plaintiffs' petition/complaint is denied to the extent that the Columbia County District Attorney or any other prosecuting agency is entitled to disciplinary files of Hudson PD personnel{**73 Misc 3d at 1071} which are substantiated and unsubstantiated and are the subject of a prosecutorial instrument.