Criminal Court of the City of New York, Bronx County, September 27, 2023

Darcel D. Clark, District Attorney (Samuel Hines of counsel), for the People.

The Bronx Defenders (Rachna Agarwal of counsel) for defendant.

Summary

The People's protective order motion is denied in its entirety.

Defendant, Elvis Chimborazo, stands charged in an information with driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), reckless driving (Vehicle and Traffic Law § 1212) and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). A discovery conference was held before the court on August 18, 2023, whereupon the People were ordered to make certain discoverable material available to the defense, including NYPD Internal Affairs Bureau (IAB) logs for named police officers. The court also set a motion schedule at the request of the defense.

While motion practice is currently ongoing, the People have filed and served a protective order motion, dated September 18, 2023, moving the court to "withhold disclosure of . . . unredacted IAB logs that are from substantiated and unsubstantiated allegations for" named police officers, i.e., the very IAB logs the court ordered the People during the discovery conference to make available to the defense. In the alternative, the People move in a separate branch of the protective order motion to classify the IAB logs as "protected discovery," thus "limiting their possession to Defense Counsel(s) and their use to the defense of this case only."^[FN*]

In presenting the procedural history of this matter in their protective order motion, the People make a most interesting confession of sorts. According to the People—and the court cannot stress enough that these are the People's own words—immediately following the discovery conference, "the People {**81 Misc 3d at 444}requested the unredacted IAB logs that pertained to unsubstantiated and substantiated allegations for the named officers . . . from the Discovery [*2]Compliance Bureau at the Bronx District Attorney's Office," in order to comply with the court's discovery order. Two days later, on August 20, 2023, "the Discovery Compliance Bureau informed the assigned ADA [assistant district attorney] that the minutes from [the court's] oral order regarding the unredacted IAB logs was [sic] required to be turned over to the [NYPD] for the People to receive the unredacted copies" (emphasis added).

The next day, August 21, 2023, the People ordered the discovery conference minutes from the court stenographer and, upon receipt on September 5, 2023, "sent the minutes . . . to the Discovery Compliance Bureau." That same day, September 5th, "the People learned from the [NYPD], via the Discovery Compliance Bureau, that the People needed to file a Protective Order [motion] regarding the unredacted IAB logs of [the named police officers] in order for the People to receive them" from the NYPD (emphasis added). In response to this demand, "the People filed a protective order" motion on September 18, 2023, the one now before the court.

"The district attorney and the assistant responsible for the case . . . shall 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" (CPL 245.55 [1]).

Importantly, material 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" (CPL 245.20 [2] [emphasis added]). In particular, then, automatically discoverable material (see CPL 245.20 [1]) in the possession of the NYPD is deemed by statute to be in the People's coequal possession. Thus, when the People request material such as IAB logs from the NYPD, the only statutorily appropriate response by the NYPD, pursuant to the discovery statute, is to "ensure" the free "flow" of this material to the People. The court can fathom no reading of the discovery statute that permits the NYPD to impose additional preconditions—e.g., demanding the minutes of court proceedings or requiring the filing of a protective order motion—for handing over IAB material that the State Legislature has decreed to be in the People's possession.{**81 Misc 3d at 445}

Also concerning is the People's self-admitted kowtowing to these purported NYPD demands. The People cannot be made to jump through a series of NYPD-crafted hoops to receive discoverable material that the New York State Legislature deems to be in the People's possession—unless the People allow themselves to be made to so jump. Whatever laudable intentions may be ascribed to the NYPD, e.g., a desire to proactively protect the privacy interests of its rank and file, the fact remains that its demand for concessions from the People in exchange for allowing material to "flow" is anathema to the discovery statute schema. Whatever the policy, bureaucratic, interpersonal, moral and/or other reasons undergirding the People's accommodating reaction to the NYPD's unauthorized demands, the court cannot be complicit in such a perversion of the statutory order.

"Upon a showing of good cause . . . , the court may at any time order that discovery or inspection of any kind of material or information under this article be denied, restricted, conditioned or deferred, or make such other order as is appropriate" (CPL 245.70 [1]). That the protective order motion filed here was effectively a ransom payment to the NYPD, in exchange for the release of material that the People statutorily co-possess, is per se not "a showing of good cause" to grant the motion. Accordingly, the People's protective order motion is denied in its entirety.