Supreme Court, Queens County, August 1, 2022

David D. Strachan, Jr. for defendant.

Melinda Katz, District Attorney (Jonathan Selkowe of counsel), for plaintiff.

Defendant, James Williams, is charged with the crimes of murder in the second degree as a hate crime (Penal Law §§ 125.25 [1]; 485.05), murder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), and two counts of tampering with physical evidence (Penal Law § 215.40 [2]), stemming from allegations that on September 7, 2020, he stabbed the complainant to death.

On March 24, 2022, defendant filed a motion to compel production of all underlying disciplinary records of 13 officers that have substantiated Internal Affairs Bureau (IAB), Civilian Complaint Review Board (CCRB), or other charges, and whom the People may call as witnesses at trial. In the alternative, defendant requests preclusion of any testimony from NYPD officers.

Specifically, defendant claims that the 13 law enforcement officer witness (LEOW) letters that the People turned over during discovery, pursuant to section 245.20 (1) (k) of the Criminal Procedure Law, are insufficient to satisfy their discovery obligations because they do not provide the substance or details about the nature or extent of the misconduct. As a result, defendant submits that section 245.20 (1) (k) requires the People to turn over underlying paper work, such as a complaint or other documentation, related to officer misconduct. Defendant notes that there is a presumption of disclosure under CPL article 245 and that the People cannot withhold the underlying documentation if it is subject to automatic disclosure. Defendant also relies on the repeal of section 50-a of the Civil Rights Law, which shielded personnel records of NYPD officers from the public. Finally, defendant claims that the People are imposing a materiality requirement that does not exist in article 245.{**76 Misc 3d at 714}

After defendant filed his motion, the court ordered the parties to confer diligently to attempt to reach an accommodation as to this dispute. (See CPL 245.35 [1].) Although the [*2]People disagreed that article 245 required underlying documentation of police misconduct to be turned over, they alerted defendant that they would obtain any underlying documentation if the misconduct referenced in the LEOW letters was germane to an issue in this case. This was after they had turned over 75 pages worth of material under section 245.20 (1) (k), including LEOW letters and some of the underlying paper work regarding police misconduct. Because defendant believed he was entitled to the underlying documents under article 245, he did not confer further with the prosecutor. As a result, after several adjournments, the court ordered the People to file a response.

The People filed papers in opposition on July 6, 2022, claiming that the plain language of section 245.20 (1) places limits on the impeachment information they must obtain and disclose. First, the phrase "relate[d] to the subject matter of the case" (CPL 245.20 [1])—language that tracks closely the Court of Appeals' language in People v Garrett (23 NY3d 878 [2014])—limits the People's duty to learn of favorable information where it relates directly to the prosecution or investigation of the defendant's case. Second, the limiting phrase "in the possession, custody or control of the prosecution" (CPL 245.20 [1]) excludes CCRB documentation, as the CCRB is not an agency in the People's control. Finally, the People conclude that the LEOW letters satisfy their discovery obligations because they identify the officers, the subject matter of any disciplinary actions, and any investigative conclusions, sufficient for use on cross-examination by defendant.

The primary question the court must resolve on this motion is whether the People's LEOW letters satisfy their discovery obligations under section 245.20 (1) (k) or they must turn over underlying documentation. Two provisions in article 245 define the People's discovery obligations. Section 245.20 (1) qualifies that the People must turn over all material "that relate[s] to the subject matter of the case." Similarly, section 245.20 (2) limits items deemed to be in the People's custody and control to those "related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency." Thus, "[b]ecause they do not relate to the prosecution of the charge, police personnel records are not deemed, by the{**76 Misc 3d at 715} statute, to be in the People's control."^[FN1] (People v Cano, 71 Misc 3d 728, 738 [Sup Ct, Queens County 2020, Lopez, J.]; see also People v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020, Hecht, J.]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020, Hecht, J.].) There would be no reason to modify "all items and information" with the phrase "related to the prosecution of a charge" if all police documents were deemed to be in the People's possession. (Perez, 73 Misc 3d at 180.)

Indeed, the Court of Appeals addressed the new criminal justice reforms recently, noting that courts must avoid reading a statutory scheme in a way that renders a provision superfluous. (See People v Galindo, 38 NY3d 199, 203-206 [2022] [holding that newly added CPL 30.30 (1) (e) need not be read as superfluous].) If defendant's contention that section 245.20 (1) (k) expands the People's obligations to turn over impeachment evidence for law [*3]enforcement witnesses is true, so too is the legislature's qualification of that expansion through the statutory language in section 245.20 (1) and (2). This court must adhere to the plain meaning of the statute and impute to the legislature a clear intent to limit the People's discovery obligations. Indeed, if there were no limits to discovery, the legislature would not have added the limiting language in article 245. Thus, defendant's "presumption of disclosure" cannot override the unambiguous statutory language in article 245.

Further, the cases defendant relies upon do not change this court's analysis. In People v Cuzco-Chauca (Crim Ct, Queens County, 2021, Gershuny, J., docket No. CR-010871-21QN [see defendant's exhibit A]), the court concluded summarily that impeachment information was not subject to the "subject matter of the underlying case" qualification without explaining why that is so. Indeed, there is no indication in the statute that subdivision (1) (k) is to be interpreted any differently than the other subsections containing discoverable information. And one of the two cases that court relied upon for that proposition in its own decision refutes defendant's position. In People v Altug{**76 Misc 3d at 716} (70 Misc 3d 1218[A], 2021 NY Slip Op 50145[U], *3 [Crim Ct, NY County 2021]), the court explained, "The defendant overstates the People's disclosure obligations with respect to impeachment material. Nothing in CPL 245.20(1) requires disclosure of a police officer's full personnel or disciplinary records."

Similarly, defendant's reliance on People v Daniels (Sup Ct, Queens County, 2021, Zaro, J., index No. 1176/2020 [see defendant's exhibit B]) is inapposite. In that case, the People were in possession of underlying CCRB records and, as a result, the court ordered the prosecution to turn those documents over to the defense—crucially, without affecting the People's statement of readiness or certificate of compliance. Here, the prosecutor has turned over whatever underlying documentation he has but has declined defendant's request to obtain further documentation.^[FN2] Thus, they are not in possession of further underlying documentation that they have failed to turn over. As stated above, the People's discovery obligations do not require them to obtain underlying documentation. If, however, the People are in actual possession of underlying documents, they must turn them over to the defense.

Next, defendant claims that the repeal of section 50-a of the Civil Rights Law dictates that the People must turn over underlying documentation regarding police misconduct. But the repeal of a section of the Civil Rights Law cannot and does not define the scope of the People's discovery obligations under article 245 of the Criminal Procedure Law. (See Perez, 73 Misc 3d at 183 ["Civil Rights Law § 50-a was not in any way integrated into the discovery statute. Nor was the repeal of section 50-a attended by any concomitant amendment to CPL article 245. Thus, the People's discovery obligations pursuant to article 245 were exactly the same before and after the repeal of section 50-a"].)

The argument that the LEOW letters are insufficient for purposes of cross-examination is also meritless. Notably, defendant's argument is that the letters do not include "any substance or details" about the misconduct in general. Defendant does not reference any specific instance of misconduct, nor does he explain how the information contained in the letters is{**76 Misc 3d at 717} insufficient. For [*4]example, Detective Drew Solomon interrogated defendant at the precinct after his arrest. The LEOW letter for Detective Solomon states: that he had been found guilty of failing to prepare a memo book entry on November 22, 2013; that he is under investigation for failing to obtain an interpreter on July 18, 2020; and that he is under investigation for abusing his authority while conducting a search of a premises on May 5, 2021. Defendant possesses three separate dates on which the named detective is alleged to have committed misconduct, the charges stemming from that misconduct, the underlying facts, and the punishment, if any has been given. Thus, because defendant's argument is conclusory and he does not show how the letters are insufficient specifically, the court rejects that contention.

It should be noted that defendant's argument is lacking severely in detail. For example, on each of the LEOW letters, the prosecutor notes that "additional information regarding this officer's CCRB disciplinary history may be available at," and provides a hyperlink to obtain further information. There is also a hyperlink for NYPD disciplinary history. Did defendant visit those links and find no further information regarding the misconduct? Did defendant even visit those links? This court understands that article 245 has been in place for two years only and that reasonable minds might differ in interpreting new legislation, with litigation required to test the limits of the law. But defendant's affirmation lacks important detail that goes to the heart of the motion. If defendant is truly lacking in information—a situation that the new discovery laws were designed to limit as much as possible—then defendant should be explicit in stating what facts he has, what facts he is missing, and what steps he has taken to conclude that he is owed more.

Where defendant's motion is not lacking in detail, however, is in its hyperbole and ad hominem attacks from his July 11, 2022 reply affirmation. First, defendant asks this court to bar the People's July 6 response as untimely, based upon his initial motion having been filed on March 24, 2022. But defendant ignores the fact that this court ordered the parties to confer diligently to reach an accommodation regarding discovery first—much as he ignored that order itself. The prosecutor told defense counsel that he would attempt to obtain any underlying documentation if the issue was germane to the case. Using Detective Solomon as an example again, had defendant{**76 Misc 3d at 718} informed the prosecutor that defendant speaks another language and that the interrogation was conducted in English, such a showing could have caused the prosecutor to attempt to obtain the underlying documentation regarding his pending misconduct charge. Similarly, had Detective Solomon been present while a search warrant was executed at defendant's house, his pending alleged misconduct regarding abusing his authority during the search of a premises becomes more germane to the case. Defendant believed he did not have to make that showing and refused to confer with the prosecutor.

It is important to note once again that the People's discovery obligations here were satisfied by their LEOW letters and they did not need to obtain the underlying documentation. Thus, when defendant argues that the People were inserting a materiality requirement into article 245, that was not so. Rather, what defendant's argument really addresses is the People's refusal to go beyond their discovery obligation without a showing that the information that defendant alleges to lack is germane to this case. And the People's position makes clear that they were willing to go beyond had defendant engaged in good faith discussions.

Second, defendant makes clear that he believes the prosecutor is acting in bad faith. He claims that the prosecutor is "thumbing" his nose at article 245 "in his typical self-righteous and condescending fashion," and attempting to circumvent the statute "as usual." Thus, he asks this [*5]court to place the prosecutor under oath so that the court and defense "may interrogate him."

Based on this court's analysis above—that the People satisfied their discovery obligations here—defense asks this court to find that the prosecutor acted in bad faith for attempting to accommodate defendant's request for discovery beyond what is required by statute. Rather than a show of bad faith, the prosecutor's actions here were clearly made in good faith. The prosecutor turned over all the underlying documents in his actual possession and offered to obtain more if defendant could show how the allegations were germane to the issues here. Defendant declined to do that, ignored the court's order to confer diligently, and injected the court into the discovery dispute to resolve the issue.

Thus, for the reasons discussed above, defendant's motion to compel production of underlying disciplinary records is denied,{**76 Misc 3d at 719} as is his request to preclude all police testimony and his request to place the prosecutor under oath for him to question.