For the reasons outlined infra, the Defendant's motion to have the Court sign a subpoena duces tecum to the New York City Police Department and the New York City Civilian Complaint Review Board ("CCRB") seeking otherwise confidential records relevant to New York City police detectives Walter Marin and Andrew Prendergast is denied. With respect to the Defendant's motion for the Court to order the People to produce Brady material, the People are reminded of their continuing obligation to furnish such material pursuant to Brady v. Maryland, 373 US 83 (1963).

The Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Third Degree, one count of Criminal Possession of a Controlled Substance in the Fifth Degree, one count of Criminal Possession of a Controlled Substance in the Seventh Degree and one count of Criminally Using Drug Paraphernalia. This Court has completed the vast majority of a Mapp/Dunaway hearing to determine whether probable cause existed to arrest the Defendant and whether physical property attributed to him was properly recovered. Prior to the hearing, a different judge conducted a Darden hearing at which the Court questioned the informant who was the source of the information justifying the search warrant and a motion to controvert the search warrant was denied.

The People called two witnesses during the instant hearing: Detectives Walter Marin and Andrew Prendergast. After the completion of their testimony, the Court granted the Defendant's application to re-open the hearing to allow the defense to attempt to impeach the credibility of these witnesses with the underlying facts regarding prior allegations of misconduct against them which the defense indicated they did not have complete information about during their initial cross-examination. In connection with that application, the Defendant now also seeks to subpoena confidential police personnel, disciplinary and CCRB records with respect to these two detectives. That application is opposed by the People, the New York City Police Department and the CCRB.

In this case, the detectives were part of a team executing a search warrant during which the Defendant and others were arrested. The Defendant asserts he is entitled to the disclosure of the detectives' personnel files and CCRB records for two reasons. First, he asserts he is entitled to review these files because of what he alleges are inconsistencies in the testimony of the detectives both with respect to other testimony and police paperwork. Second, he asserts that there have been thirteen civil suits in which these detectives have been alleged to have engaged [*2]in misconduct. He further asserts that ten of these cases have been settled by the City of New York. He asserts one suit arises from the arrest of a co-defendant in the instant case, Bishop Johnson, (Johnson v. Marin, 14-CV-04912).^[FN1] Mr. Johnson was arrested during the same search warrant execution as the Defendant but the charges were then dropped and Mr. Johnson was released the next day. The Defendant further asserts that this case was settled with a $22,500 payment to the plaintiff.

Police personnel records are confidential and may not be disclosed without an officer's consent or pursuant to a court order. Civil Right Law § 50-a. In order to warrant disclosure to a court for an in-camera inspection of such records, the proponent must in good faith put forward a "factual predicate which would make it reasonably likely that the [police personnel] file" would result in "information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends." People v. Gissendanner, 48 NY2d 543, 550 (1979). The fact that a lawsuit has been filed, or even settled by a municipality on behalf of a police officer is not a "factual predicate for a determination that it is reasonably likely that confidential records contain relevant and exculpatory evidence." People v. Rodriguez, 46 Misc 3d 1220 (A) (New York County Supreme Court 2014 [Wittner, J.]).

The Court does not find the argument that personnel or CCRB records should be unsealed because of what the Defendant asserts are inconsistencies in the detectives' testimony persuasive. Such alleged inconsistencies are certainly relevant to the credibility of that testimony. But they do not, in this Court's view, indicate that the detectives engaged in misconduct warranting the unsealing of personnel files. Testimonial inconsistencies obviously arise in varying degrees with respect to the testimony of most witnesses.

Police officer testimony is particularly prone to such impeachment for a number of legitimate reasons. First, police officers typically create multiple documents including memo books, arrest reports, vouchers and other materials which can reveal inconsistencies with their testimony. Second, police officers often testify in grand jury proceedings or hearings before a trial which can again be fodder for cross-examination. Third, unlike a civilian for whom witnessing a crime may be a particularly memorable event, a police officer's memory of a routine day on the job may not be as robust. Finally, where multiple officers witness the same event, unless they are conspiring to fabricate a story, their accounts are usually not identical.

In addition to all of these factors, here the detectives testified about a fast-moving series of events in which multiple police officers arrested multiple suspects more than a year and half ago. There are many explanations for why there might be discrepancies in paperwork or between testimony. Those inconsistencies, in this Court's view, do not warrant granting the instant motion.

The CCRB indicates they have files responsive to the Defendant's request. They assert, however, that "CCRB does not have a record of any complaints against the Officers [who are the subject of the motion] for any acts of misconduct of any type that have been substantiated by [*3]CCRB".^[FN2] The Court credits that assertion. The CCRB is an independent agency whose job it is to investigate complaints against police officers. The fact that they have not substantiated any allegations against these detectives indicates to this Court that there is not a factual predicate which justifies the release of the CCRB records.

The bringing of a lawsuit is certainly not probative of wrongdoing. The settlement of such a suit presents a different question and the Court concedes that the fact that multiple suits have been settled with respect to claims against these detectives and others warrants scrutiny here. The common-sense notion: "where there's smoke, there's fire" comes to mind. But, settlements, obviously, are reached for many reasons not necessarily indicative of wrongdoing by a sued party.

Detective Marin has been a police officer for 11 years. Detective Prendergast has been a member of the NYPD for 17 years. Detective Marin testified that he has participated in the execution of 70-80 search warrants. Detective Prendergast testified that he has participated in hundreds of arrests and search warrant executions. These detectives are narcotics officers who routinely arrest suspects and search their persons and property. The execution of a search warrant — where the police enter the inner sanctum of a person's home with judicial authority — may be particularly prone to complaints of improper police conduct for obvious reasons.

Second, it appears that all of these suits have involved not just detectives Marin or Prendergast, but multiple officers. The Johnson v. Marin case (discussed supra and infra) involved allegations against ten officers, for example. There is no indication that the City acknowledged wrongdoing by anyone involved in any of these suits when they entered into settlement agreements. But, even assuming such settlements might be indicative of wrongdoing by some officers in some cases, it is completely unclear whether any such wrongdoing concerned either of these two detectives. The Defendant seeks to rebut that argument by asserting that the claims against these detectives arose in the context of them working as a team with other officers. But the fact that such allegations have been made, of course, does not make them so.

The Defendant asserts that there have been 13 suits against "Detectives Marin and Prendergast" and that ten have been settled "on the officers' behalves"^[FN3] (emphasis added). The Defendant has attached a list of these suits with his motion.^[FN4] But the list includes 11 suits, not 13. Moreover, while each suit indicates multiple defendants, only two list both officers Marin and Prendergast as co-defendants. Detective Marin is actually noted as a named defendant on the list in a total of 5 suits, not 13 (two with Detective Prendergast and three without him). Detective Prendergast is noted as a named defendant in 8 suits (again, not 13, two with Detective Marin and six without him).

None of the allegations in these suits are directly relevant to the factual issues this Court must consider at the hearing. They are potentially relevant only to the detectives' general [*4]credibility. That is true even with respect to the Johnson suit concerning a co-defendant in the instant case. In that suit, according to the Defendant, Mr. Johnson first asserted that the police entered the location without a search warrant "upon the basis of extremely unreliable information".^[FN5] But a search warrant was obviously issued in this case and was found valid by a different judge of this Court. The validity of the search warrant is not a subject of the instant hearing. Mr. Johnson also alleges that the suspects at the search warrant location were placed in handcuffs "without explanation", that the police ignored Mr. Johnson's requests to loosen his unduly tight handcuffs, held Mr. Johnson in custody for more than 24 hours, charged him with criminal possession of marijuana and then dismissed the charges.

None of these allegations are relevant to whether the police had probable cause to arrest and search Mr. Martin. It is not even clear from the Defendant's moving papers what particular conduct Detective Marin (who was named as a defendant in the suit) or Detective Prendergast (who was not named) is alleged to have engaged in with respect to Mr. Johnson. As noted supra, this suit alleged wrongdoing by ten police officers. As the Gissendanner court made clear, the attempt to obtain impeachment material relevant to the facts of a case requires a different analysis than an attempt to obtain material from personnel files simply to impeach an officer's general credibility. It is the latter situation which exists here. Finally, with respect to the police personnel files, it is relevant that the CCRB has not substantiated any complaints against these officers. There is no evidence before this Court that a complaint against either detective has ever been substantiated in any forum. For all of those reasons, the Defendant's motion is denied.