Supreme Court, New York County, January 12, 2022

Janet Sabel, The Legal Aid Society (Francis K. White of counsel), for defendant.

Alvin Bragg, District Attorney (Ann-Marie Whelan of counsel), for plaintiff.

The defendant is charged with murder in the second degree. He moves here to compel the People to produce through discovery police disciplinary records for testifying witnesses maintained by the New York City Civilian Complaint Review Board (the CCRB) and the New York City Police Department (the NYPD) (police disciplinary records) which have been classified by these agencies as "unfounded" or for which officers were "exonerated." The defense seeks some of these records in summary form and some complete records. The People contend they are not required to provide any information regarding exonerated or unfounded allegations. For the purpose of this motion, the court has presumed that at least some of these records would concern alleged conduct which would be relevant to officer credibility, rather than only minor administrative infractions which would not be proper subjects for cross-examination. For the reasons outlined here, the defendant's motion is denied.

The dispute here is one which is being litigated in numerous New York trial courts for which there is not yet appellate authority. The People have agreed to provide the defense with police disciplinary records concerning "substantiated," "pending" and "unsubstantiated" allegations.

The CCRB and NYPD have similar definitions for these terms. The People note that the CCRB defines a "substantiated" allegation as one where "there was a preponderance of the evidence that the acts alleged occurred and constituted misconduct." An "unsubstantiated" allegation means "there was insufficient evidence to establish whether or not there was an act of misconduct." An "exonerated" allegation occurs when "there was a preponderance of the evidence that acts alleged{**74 Misc 3d at 553} occurred but did not constitute misconduct." Finally, an "unfounded" allegation means "there was a preponderance of the evidence that the acts alleged did not occur." (People's affirmation at 4, citing 38 NYCRR 1-33.)

The provision of New York's discovery statute at issue here requires the production of[*2]"[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness." (CPL 245.20 [1] [k] [iv].) The disputed records are not directly related to the charges in this case. They concern alleged incidents which might impeach witness testimony based on an officer's conduct in other cases. The statutory construction question on this motion, as other courts have observed, is whether "exonerated" and "unfounded" records would tend to impeach the testimony of these officers.

More precisely the question primarily hinges on the meaning of the word "tends," that is whether exonerated or unfounded allegations "tend to" undermine the credibility of testifying police officers. The word "tends" has been defined as "to exhibit an inclination or tendency" (Merriam-Webster Online Dictionary, tends [https://unabridged.merriam-webster.com/collegiate/tend]) or "to be disposed or included in action, operation, or effect to do something" (Dictionary.com, tends [https://www.dictionary.com/browse/tend]).

Most trial courts which have considered this issue have apparently agreed with the People's and this court's position here. In what is perhaps the leading case supporting that view (People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020]), the court held that with respect to exonerated or unfounded allegations "there is no good faith basis for cross-examination by the defendant's counsel." (See also People v Kelly, 71 Misc 3d 1202[A], 2021 NY Slip Op 50264[U] [Crim Ct, NY County 2021] [adopting the same rationale]; People v McKinney, 71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, NY County 2021]; People v Davis, 70 Misc 3d 467 [Crim Ct, Bronx County 2020]; People v Williams, 73 Misc 3d 1091 [Sup Ct, Kings County 2021] [unsubstantiated, exonerated or unfounded allegations not required to be provided in discovery].)

The contrary position was explored in an extended thoughtful opinion in People v Portillo (73 Misc 3d 216, 228 [Sup Ct, Suffolk County 2021]). There, among other points, the court argued that "[i]t is the nature of the allegation itself which establishes a good faith basis to impeach, and the credibility{**74 Misc 3d at 554} assessment of an IAB official [an official of the Suffolk County Police Department's Internal Affairs Bureau] may not impact whether the information should be turned over." (Id.) To further develop this argument, exonerated or unfounded determinations arise from allegations which obviously were deemed sufficient to result in an inquiry or investigation. Those allegations provide a good faith basis to question officers regarding them regardless of whether an administrative agency has determined they are insufficient.

This court agrees with the People's position here, but also believes that the oft-cited rationale for not providing exonerated or unfounded police disciplinary records—that they do not provide a good faith basis for cross-examination—is lacking. In this court's view, the Portillo court's position on that issue is closer to the mark. Exonerated or unfounded records are not required to be produced not because they fail to provide a good faith basis for impeachment. They may. Such records are not required to be produced under New York's discovery law because they do not actually tend to impeach the police witnesses they may be used against, a different question. The defendant here succinctly summarized what is perhaps the most important foundational principle behind the views on both sides of this debate: "[I]f there is a right to use the information to impeach, there is a right to disclosure from the prosecution and police." (Defendant's affirmation ¶ 12.) This court disagrees. In this court's view, a "good faith basis" to pose an impeachment question requires a lesser showing than a determination that information in a police disciplinary record would "tend to impeach." The two standards are not equivalent. It is the higher standard, that the information would tend to impeach, which is at issue under New York's discovery statute.

It has been held that an acquittal in a court proceeding, or a dismissal of a judicial [*3]proceeding on the merits, negates any good faith basis for questioning a witness about an alleged criminal act and may properly bar cross-examination. (People v Padilla, 28 AD3d 365 [1st Dept 2006], lv denied 7 NY3d 792 [2006]; People v Jones, 24 AD3d 815 [3d Dept 2005], lv denied 6 NY3d 777 [2006]; People v Plaisted, 2 AD3d 906 [3d Dept 2003], lv denied 2 NY3d 744 [2004]; People v Vidal, 26 NY2d 249 [1970].) This court is not aware that the same bar has been applied, however, where alleged misconduct was found lacking in an administrative proceeding. As the defendant argues, there are good reasons to draw a distinction between{**74 Misc 3d at 555} judicial proceedings, with all of their requisite due process and transparency, and administrative determinations made by a multitude of local police agencies which may not have such attributes.

In this court's view, therefore, the argument that unfounded or exonerated findings are not subject to discovery because they do not provide a good faith basis for impeachment questions is unpersuasive. (See generally People v Smith, 27 NY3d 652, 662 [2016] [cross-examination may be permitted where lawsuits allege a police officer engaged in misconduct "based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness"]; People v Rouse, 34 NY3d 269, 277 [2019] ["A good faith basis requires only that counsel have some reasonable basis for believing the truth of things about which counsel seeks to ask" (internal quotation marks omitted)]; Guide to NY Evid rule 6.16, Impeachment of a Law Enforcement Officer, Note subd [3] [b], [c] [outlining case law regarding law enforcement officer impeachment and noting that the proper scope of police disciplinary records discovery "remains unsettled"].) In this court's view, a defense attorney might have "some reasonable basis for believing the truth" of an allegation, and thus have a good faith basis for an inquiry, even if a local police department investigating its own officer asserted the officer had done nothing wrong. As one federal appeals court explained the principle, "an attorney does not need definitive proof to have a good faith-basis, just '[a] well reasoned suspicion that a circumstance is true.' " (United States v Beck, 625 F3d 410, 418 [7th Cir 2010].)

What is at issue under New York's discovery statute, however, is not whether exonerated or unfounded allegations provide a good faith basis for impeachment attempts. The question is whether they actually tend to impeach. In this court's view, they do not. Jurors are instructed at every trial that a question by a lawyer, by itself, is not evidence. It is only the question with the answer which is evidence. Thus, a question to a police witness based on an allegation which was determined to be unfounded like: "Isn't it true that you searched Mr. Smith on January 1 knowing that was unlawful" to which the officer answers "no" provides no impeachment. A defense attorney might appropriately determine that asking such a question with a good faith basis and receiving a denial was helpful, since it might raise a question about an officer's credibility. But such questions and answers do not result in impeachment evidence.{**74 Misc 3d at 556}

Of course, a defense attorney will usually not know whether an officer will admit the misconduct until the question is asked. If the discovery statute required the People to produce police disciplinary records "which tend to provide a good faith basis to seek to impeach a witness" the defense argument here would be stronger. But it requires that the information actually tend to impeach, that is, actually tend to result in statements by officers (not just questions by lawyers) which undermine police testimony.

With respect to exonerated and unfounded allegations, this requirement would be met where an officer was asked about misconduct which had already been determined by the NYPD or CCRB to not be wrongful or to never have occurred and then, on the witness stand, assert contrary to these determinations (and likely contrary to the officers' prior assertions) that the [*4]officer had indeed acted wrongfully. That might occur in some cases. But again, that is not the question. The question under the statute is whether such circumstances would tend to occur, that is, whether information regarding such exonerated or unfounded allegations provided to defense attorneys would tend to impeach police witnesses.

Obviously, they would not. That is, it could be predicted in the vast majority of cases that a police witness whose conduct had already been investigated and found to be proper would not newly acknowledge wrongdoing when questioned about it in an unrelated case. A second way in which a police witness might be impeached about an unfounded or exonerated allegation would be where the defense obtained extrinsic evidence to impeach the officer and, although the impeachment did not concern any conduct relevant to the issues in the case, the defense moved and the court approved impeachment through the introduction of extrinsic evidence. That would only be proper, however, where the court found the impeachment evidence was not collateral and was independently admissible and in its discretion ruled that it should be presented to the jury. (See Guide to NY Evid rule 6.11, Impeachment in General, Note subd [2], citing Badr v Hogan, 75 NY2d 629, 635 [1990], and People v Schwartzman, 24 NY2d 241, 245 [1969] [outlining the circumstances where extrinsic evidence is admissible to impeach a witness].) Again, however, such instances would be rare. Thus, the requirement of the statute that only records which "tend to impeach" must be produced in discovery is not met with respect to unfounded or exonerated allegations. Such allegations do not tend to impeach police testimony.{**74 Misc 3d at 557}

There are finally a couple of related issues which should be briefly addressed. The recent repeal of the confidentiality protections afforded police disciplinary records by former Civil Rights Law § 50-a (L 2020, ch 96, § 1) might allow the defense to obtain the same records at issue here through a Freedom of Information Law (FOIL) request. The defendant might not be able to obtain these records through a FOIL request in advance of the trial. But, as other courts have observed, the repeal of Civil Rights Law § 50-a did not modify the discovery statute. The question here is not whether unfounded or exonerated records are confidential. The question is whether the People are required to produce them.

Second, as the Portillo court noted in support of its view, impeachment material must be turned over by the People under the statute "irrespective of whether the prosecutor credits the information." (CPL 245.20 [1] [k].) In this court's view, however, that prohibition on prosecutors making credibility determinations is not directly applicable to the closely related question of whether credibility determinations previously made during investigations and through administrative proceedings impact discovery rules. The legislature's determination to prohibit the subjective opinions of individual prosecutors from negating discovery requirements does not evidence an equivalent intent to enact the same bar for formal administrative decisions.

There is a policy argument which can be leveled against this court's conclusion here, apart from its impact on the confrontation rights of defendants. It is that not requiring unfounded or exonerated allegations to be produced in discovery might incentivize police investigations which were inadequate and encourage officers to always deny wrongdoing alleged in those proceedings, since information about them would never be provided in discovery. The degree to which police disciplinary records should be transparent, however, was addressed by the legislature through its repeal of Civil Rights Law § 50-a and its enactment of new provisions of the Public Officers Law which carefully regulate the degree to which disciplinary records should be publicly disclosed. Moreover, there are also harmful effects which can arise from the public dissemination of baseless charges against law enforcement officers.

This court's task here is not to determine policy. It is to construe what the discovery statute says. The legislature might have determined that exonerated and unfounded allegations{**74 Misc 3d at 558} should be produced in discovery. In this court's view, they did not. For all of those reasons, the defendant's motion is denied.