Family Court, New York County, May 4, 2023

Heather Joy Saslovsky for respondent.

Sylvia O. Hinds-Radix, Corporation Counsel (Elizabeth Anne Congdon of counsel), for presentment agency.

On March 13, 2023, respondent filed a motion seeking an order:

"1. Directing the Presentment Agency to produce the following documents regarding Detective Frank Vega (Manhattan Child Abuse Squad), PO Lisa Grayson (32nd Precinct), Sgt. Jenny Wong (32 Precinct), and all other law enforcement involved in the earlier contact with Respondent at his home on December 4, 2022, as well as those involved with the subsequent contact at Respondent's home, his arrest and/or taking of the following alleged evidence (the 'NYPD personnel'):

"a. All documents concerning disciplinary action taken or pending by the New York City Police Department ('NYPD') against the NYPD personnel; and

"b. The Central Personnel Index ('CPI') and the Summary of Employment History ('SEH') containing information and history of disciplinary action taken or pending by the NYPD against the NYPD{**79 Misc 3d at 683} personnel; and

"c. Investigator closing reports on all claims against the NYPD personnel; and

"d. Complaints filed with and all findings of the Office of Administrative Trials and Hearings as to the NYPD personnel; and

"e. All charges, specifications, and transcripts from all department trials with the [*2]Department Advocates Offices, and Deputy Commissioner of Trials records, as to the NYPD personnel; and

"f. The employment/personnel and disciplinary files and records of each of the NYPD personnel; and

"g. The records of each of the NYPD personnel with the Civilian Complaint Review Board and any judicial findings that any of the NYPD personnel were not credible; and

"2. Directing the Presentment Agency to produce, pursuant to FCA § 331.3, the items not produced in response to Respondent's Demand to Produce; and

"3. Directing the Presentment Agency, pursuant to FCA § 330.1(5), to comply in full with Respondent's Request for a Bill of Particulars; and

"4. Directing the Presentment Agency, pursuant to FCA § 331.5, to supply any additional information subsequently discovered or obtained that is covered by this motion, including any video material, including but not limited to video surveillance, license plate reading software, NYPD body camera, and bystander video, and any audio material, including but not limited to any 911 calls related to the alleged incident or other matters requests [sic] herein; and

"5. Directing that a pretrial Sandoval hearing be conducted to determine what, if any, alleged prior bad acts committed by Respondent may be raised during cross-examination if Respondent testifies; and

"6. Directing that a pretrial Ventimiglia hearing be conducted to determine what, if any, uncharged crimes evidence may be introduced by the Presentment Agency during its direct case; and

"7. Reserving to Respondent the right to make further motions based upon any information received pursuant to the motion or pursuant to outstanding{**79 Misc 3d at 684} discovery demands which have not been fully responded to yet; and

"8. Any and such other further relief as the court may deem just and proper."

The petitioner filed an answering affirmation dated March 17, 2023. On April 26, 2023, counsel to the parties entered into a stipulation of the same date, by which they agreed, inter alia, that the presentment agency will "diligently act to obtain and provide all discovery in this matter, both that which is presently known and any additional discovery that the Presentment Agency may become aware of." Regarding the request for police records, the stipulation provides the following: "[t]he Presentment Agency opposes turning over police records for officers who are not testifying. The Attorney for the Child asserts that this must be turned over. The Presentment Agency and the Attorney for the Child consent to putting this question before Judge Kingo to decide." Finally, the stipulation provides that the "Presentment Agency will provide to the Attorney for the Child the proposed protective orders for videographic items of discovery forthwith. The Attorney for the Child will review as quickly as possible. Both will endeavor to have consent orders before the Court by the end of the day." The stipulation does not address the requests for Sandoval and Ventimiglia hearings or the request for leave to file further [*3]motions.

It is hereby ordered as follows:

1. Respondent's request for police records of officers who will not testify is granted. The presentment agency acknowledges that it is obligated to produce police records for officers it intends to call as witnesses pursuant to CPL 245.20 (1) (k) (iv) and Matter of Jayson C. (200 AD3d 447, 447 [1st Dept 2021]), but contends that it is not required to turn over records of non-testifying officers where respondent has no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.

Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of "[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" (CPL 245.20 [1] [k] [iv]). In Matter of Jayson C., the Appellate Division, First Department held that, although the{**79 Misc 3d at 685} Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1 [1]), the denial of records available to criminal defendants under CPL 245.20 (1) (k) (iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 AD3d at 449, citing to US Const, 14th Amend; NY Const, art I, § 11; Matter of James H., 34 NY2d 814, 816 [1974]; Matter of Arthur M., 34 AD2d 761 [1st Dept 1970]; Matter of Edward S., 80 AD2d 585, 585-586 [2d Dept 1981]).

Criminal Procedure Law § 245.20 (1) (k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to

"(i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; . . . (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment."

Although the Court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20 (1) (k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the State to disclose all evidence or information which is "favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses" (People v Baxley, 84 NY2d 208, 213 [1994]; see also Brady v Maryland, 373 US 83 [1963]; Giglio v United States, 405 US 150 [1972]; People v Rosario, 9 NY2d 286 [1961]; People v Wright, 86 NY2d 591 [1995]).

Family Court Act §§ 331.2 and 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which, in addition to specific items set forth in the statute, directs that the presentment agency shall disclose to the respondent "anything required to be disclosed . . . pursuant to the constitution of this state or of the United States" (Family Ct Act § 331.2 [1] [g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20 (1) (k) (i)-(iii) and (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents.{**79 Misc 3d at 686}

Trial courts in New York are divided regarding whether the disclosure of police records for non-testifying officers is required under CPL 245.20 (1) (k) or the State or United States Constitutions. In a number of cases from the Criminal Court of the City of New York, the court [*4]has held that the State is obligated to disclose the records because they tend to be favorable to the defense, could tend to negate a defendant's guilt, or support a potential defense (see People v Jawad, 78 Misc 3d 1217[A], 2023 NY Slip Op 50244[U] [Crim Ct, Queens County 2023]; People v Jackson, 79 Misc 3d 832 [Crim Ct, NY County 2023]; People v Figueroa, 76 Misc 3d 888 [Crim Ct, Bronx County 2022]; People v Amir, 76 Misc 3d 1209[A], 2022 NY Slip Op 50856[U] [Crim Ct, Bronx County 2022]). Although, other courts have held the opposite (see People v Diaz, 77 Misc 3d 727 [Crim Ct, Bronx County 2022]; People v Edwards, 77 Misc 3d 740 [Crim Ct, Bronx County 2022]). Here, the court finds that the first espoused rationale applies insofar as the records requested by respondent generally would tend to be favorable to the defense.

As expounded in the cases set forth above, police misconduct records of non-testifying witnesses tend to be favorable to the defense in a variety of ways, for example by providing a

"worthwhile source of defense investigation into how an officer interacts with complainants or witnesses in their cases . . . [T]he defense could call the officer themselves and use the records [to] undermine the integrity of the investigation that led to [the] arrest . . . [or] the defense could use the records to impeach hearsay declarants if testifying officers recount statements by other officers at a suppression hearing" (People v Jawad, 78 Misc 3d 1217[A], 2023 NY Slip Op 50244[U], *3 [Crim Ct, Queens County 2023] [internal quotation marks and citations omitted]).

Moreover, limiting the disclosure obligation in the manner advocated by the presentment agency would allow the presentment agency to avoid disclosure of disciplinary records for officers who participated in an arrest, collected evidence and witness statements, or were otherwise assigned to a case, simply by declining to call those officers to testify. As a result, the presentment agency could withhold the records for officers that it deemed unfavorable or problematic, even where those officers played a major role in the investigation (see People v Jackson, 79 Misc 3d 832 [Crim Ct,{**79 Misc 3d at 687} NY County 2023] [police records concerning a non-testifying officer's misconduct must be disclosed where the officer was integral to the investigation and arrest of defendant]). The opportunity for this type of obfuscation contravenes the broad disclosure contemplated by Brady, Giglio, et al. and must not be permitted.

To the extent that the presentment agency argues that respondent is not entitled to the records in question because respondent has not made an offer of proof that the records would contain materials that would impeach the credibility of any officer it would call to testify, the court finds that such an argument overlooks the obvious fact that respondent is unable to glean such information from records that he does not have access to. That is particularly the case here, where the presentment agency has yet to produce any discoverable materials despite having entered into a stipulation with counsel to respondent on April 26, 2023, that it would "diligently act to obtain and provide all discovery in this matter, both that which is presently known and any additional discovery that the Presentment Agency may become aware of."

Accordingly, this portion of the motion is granted and the presentment agency must forthwith produce to respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.

2. The portion of the motion for other discovery is facially resolved by the terms of the stipulation and therefore is denied as moot. To the extent that the respondent asserts [*5]the presentment agency has not complied with the terms of the stipulation, the respondent may make appropriate applications to the court to compel compliance.

3. Respondent's requests for hearings pursuant to People v Sandoval (34 NY2d 371 [1974]) and People v Ventimiglia (52 NY2d 350 [1981]) are denied considering the presentment agency's statement in its answering affirmation that it has no knowledge of any prior criminal record, prior bad acts, or uncharged crimes of respondent that it intends to use at the fact-finding hearing.

4. Respondent's request for leave to file further motions is denied, except as expressly authorized by Family Court Act § 332.2 (3) or otherwise addressed above.