Criminal Court of the City of New York, Bronx County, February 20, 2020

The Legal Aid Society (Willoughby Jenett of counsel) for defendant.

Darcel D. Clark, District Attorney (Madeline Smith of counsel), for plaintiff.

The defendant is charged with driving while intoxicated and other related charges. The primary issue presented in this case is whether the People are required to ask for an unsealing order from the court to obtain Brady/Giglio materials from an unrelated and sealed criminal case in order to satisfy their constitutional and statutory obligation (see Giglio v United States, 405 US 150 [1972]; Brady v Maryland, 373 US 83, 87 [1963]; CPL 245.20 [1] [k]).

After a careful consideration, the court concludes that the People's Brady/Giglio obligation was fully discharged by the{**67 Misc 3d at 393} disclosure of the information within their possession and they are under no constitutional or statutory obligation to obtain an unsealing order from the court. At the same time, in light of the recent Court of Appeals decision in People v Rouse (34 NY3d 269 [2019]) that underscores the importance of safeguarding the defendant's right to cross-examine the witnesses about their prior incredible testimony, the court orders unsealing in the interest of justice to conduct an in camera inspection of the evidence in the sealed case (Matter of Hynes v Karassik, 47 NY2d 659 [1979]).

The defendant is charged with two counts of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]) and one count of driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). The criminal court information alleges that on or about March 15, 2019, at the southeast corner of West 230th Street and Major Deegan Expressway, Bronx County, State of New York, Police Officer Dmitry Lyubchenko observed the defendant operating a gray 2007 Mercury Grand Marquis at a high [*2]rate of speed. When the officer pulled over the defendant's vehicle, he observed the defendant to have bloodshot, watery eyes and slurred speech with a strong odor of an alcoholic beverage emanating from his breath. The accusatory instrument further alleges that the defendant admitted, in sum and substance, "I had one beer about one hour ago" (see Davis complaint). The defendant was taken to a police precinct where a chemical test was performed. The test result showed the defendant to have a blood alcohol level of .16 of one per centum by weight of alcohol. The defendant was arraigned in Bronx County Criminal Court on the same day and released on his own recognizance.

On January 23, 2020, the People filed and served a certificate of compliance (COC) along with a one-page document titled, "Giglio Material." It stated,

"- PO Lyubchenko received a partially substantiated IAB, where no action was taken for an incomplete/inaccurate property clerk invoice on 08/05/2019.

"- PO Lyubchenko and PO Vitale were found not credible in a Driving While Intoxicated hearing." (See defense exhibit A.)

Critically, both Officer Lyubchenko and Officer Vitale are necessary{**67 Misc 3d at 394} witnesses in the instant case (see People's automatic disclosure form 3). The People further announced that they were ready to proceed to trial.

Defense counsel challenged the COC's validity based on the People's Brady/Giglio disclosure. He argued that the newly enacted discovery statute, CPL 245.20 (1) (k), required the People to provide all of the underlying materials including court documents and transcripts from the court proceeding where their witnesses were found incredible. He further averred that the People should provide pertinent exculpatory and impeachment evidence from the police department's investigation conducted by the Internal Affairs Bureau (IAB investigation). Based on the failure to provide this evidence, defense counsel claimed that the People did not to meet their constitutional and statutory obligation and their statement of readiness for trial was invalid.

The People opposed defense counsel's challenges in their entirety. They argued that the IAB investigation records were privileged internal police documents that may not be made available to the defense without a subpoena or an order by the court (see e.g. Civil Rights Law § 50-a; People v Gissendanner, 48 NY2d 543, 548 [1979]). They further objected on relevance grounds because there were no issues relating to accuracy of the property invoice in the instant case. Also, the People asserted that they neither possessed nor had access to documents or materials from the sealed case. Accordingly, they argued that their Brady/Giglio obligation was fully discharged by the disclosure of the information in their possession and they were under no obligation to seek an unsealing order or a subpoena to obtain the records for the defense.

After the oral argument, the court directed the People to provide all of the documents in their possession from the IAB investigation for an in camera inspection. The People provided a two-page document titled, "New York City Police Department Central Personnel Index." The court then adjourned the case for further written submissions by the parties and adjourned the case for decision to February 20, 2020. Each side timely submitted a memorandum of law on February 10, 2020.

In a criminal trial, a prosecutor has a broad obligation to disclose any information that is[*3]"favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses," irrespective of whether the prosecution {**67 Misc 3d at 395}credits the information (People v Baxley, 84 NY2d 208, 213 [1994]; see also Giglio; Brady). The prosecutor's duty extends only to the materials or information within his or her "custody, possession, or control" (People v Garrett, 23 NY3d 878, 886 [2014]; People v Santorelli, 95 NY2d 412, 421 [2000]). Favorable information in law enforcement's possession is imputed to the prosecution (People v Lewis, 125 AD3d 1109 [3d Dept 2015]) and an individual prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case" (Kyles v Whitley, 514 US 419, 437 [1995]; see also Garrett at 887).

The newly enacted discovery statute, CPL 245.20 (1) (k), codifies the Brady doctrine (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10). It mandates the prosecutor to disclose "[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 (1) negate the defendant's guilt, (2) reduce the degree or mitigate the defendant's culpability, (3) support a potential defense, (4) impeach the credibility of a prosecution witness, (5) undermine evidence of the defendant's identity as a perpetrator, (6) provide a basis for a suppression motion, or (7) mitigate punishment (CPL 245.20 [1] [k] [i]-[vii]). The statute further commands,

"The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." (CPL 245.20 [2].)

On the face of it, the new statute does not seem to place any limitations on how far the prosecutor's Brady obligation extends. More specifically, CPL 245.20 (1) (k) calls on the prosecutor to disclose "all" evidence and information that is favorable to the defense and does not distinguish between the evidence in the prosecutor's possession, custody or control and those outside. Rather, the following subdivision provides that where the material or information exists outside of the prosecutor's possession, custody or control, the prosecutor has{**67 Misc 3d at 396} a duty "to cause such material or information to be made available for discovery" (CPL 245.20 [2]). The only carve out is that there is no obligation to subpoena such materials (id.).^[FN1] The question presented [*4]in this case is whether there is a limit to the prosecutor's obligation despite the broad statutory language.

1. Evidence from the Sealed Case

In the case at bar, both sides agree that a prior negative judicial determination about the officers' credibility, albeit in a different criminal case, is evidence favorable to the defense that must be disclosed (see e.g. Rouse at 278 ["trial court abused its discretion as a matter of law in precluding cross-examination of both officers with respect to prior judicial determinations that addressed the credibility of their prior testimony in judicial proceedings"]; Giglio [evidence related to witness credibility constitutes Brady material]; People v McGhee, 180 AD3d 26 [1st Dept 2019] [prosecutor should have disclosed a witness statement that could have aided the defense in attempting to impeach the only eyewitness]; People v Garcia, 46 AD3d 461 [1st Dept 2007] [same]; People v Anderson, 55 Misc 3d 511, 513 [Sup Ct, Bronx County 2017] [issuing a subpoena for an in camera review of arresting officer's personnel records related to two federal cases in which the officer was found incredible as a matter of law]). The problem, of course, is the fact that the relevant information is sealed and, hence, not in the People's possession, custody or control. This is where the parties' arguments diverge.

Defense counsel urges the court to adopt the more expansive view of the new discovery scheme. He argues that based on the language in CPL 245.20 (2), the prosecutor has a duty to obtain the materials that could be used for impeachment and "cause" them to be made available to the defense. The People oppose{**67 Misc 3d at 397} this argument by asserting that their Brady/Giglio obligation was fully discharged by the disclosure of the information in their possession. Further, they contend that there is no legal basis to allow them to move to unseal the records under CPL 160.55 (1) (d) nor could they be compelled to do so by the court.

[1] The court agrees with the People. To begin, CPL 245.20 (1) (k) appears to be codification of existing case law around Brady and its progeny (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, CPL 245.10). Defense counsel has not provided the court with any contrary proof such as legislative history, floor discussions or other relevant materials to support his claim that the statute expands the People's traditional Brady obligation. In the court's view, the statutory language, "the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain" (CPL 245.20 [2]), indicates a clear intent by the legislature to place some limitation on the People's discovery obligation. Absent any concrete evidence that the legislature wanted to place an additional responsibility on the prosecutor, the court must conclude that the contours of the People's duty are outlined by the existing Brady case law. Under the traditional Brady analysis, the information and materials from the sealed case are outside of the People's possession, custody or control and not subject to disclosure (see e.g. People v Hayes, 17 NY3d 46, 51 [2011] ["While defendant's argument is couched in Brady terms, when distilled, he essentially seeks a rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant. However, this Court has declined to impose such an obligation"]; People v Easley, 171 AD3d 785, 785 [2d Dept 2019] [same]; Matter of County of Nassau v Sullivan, 194 AD2d 236, 239 [2d Dept 1993] [Brady doctrine is "limited in (its) application to evidence in the control of the prosecutor"]). Accordingly, the People fully discharged their obligation by disclosing information in their possession to the defense.

Even assuming, arguendo, that the more expansive view of the new statute controls and the People are under an expanded legal obligation to "cause" the material to be made available, they are without a viable legal means to obtain the records from the sealed case (see CPL 160.55). When a case is terminated in favor of a defendant, the Criminal Procedure Law compels sealing of "all official records and papers relating to {**67 Misc 3d at 398}the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor's office" (CPL 160.55 [1] [c]). These records are not available to "any person or public or private agency" (id.). They may be unsealed only in limited circumstances enumerated in CPL 160.55 (1) (d) (see Matter of Katherine B. v Cataldo, 5 NY3d 196, 203 [2005] ["This underscores the Legislature's commitment to prohibiting disclosure of sealed records"]; Matter of Joseph M. [New York City Bd. of Educ.], 82 NY2d 128 [1993] [same]; see also Hynes at 663 [discussion of how "(a)lthough it has been suggested that these exceptions may prove too narrow, the Legislature did not expand the scope of the exclusions from a sealing order when it amended the statute in 1977" (citations omitted)]). The exceptions are available to (1) a prosecutor in a proceeding where the accused has moved for an order for an adjournment in contemplation of dismissal in a marijuana case, (2) a law enforcement agency if "justice requires" it,^[FN2] (3) a state or local agency responsible for issuing gun licenses, (4) the department of corrections, parole or probation when an arrest occurs while the accused is under community supervision, and (5) any law enforcement agency if the records relate to a conviction for harassment in the second degree committed against a member of the same family or household (CPL 160.55 [1] [d] [i]-[vi]).

Under this strict standard, there is no exception that would permit the prosecutor in this case to access the information and evidence from the sealed case. Thus, even if the potentially impeaching evidence in the sealed case constituted evidence that must be provided to the defense under the new discovery statute, the People cannot fulfill that obligation through no fault of their own. The People may not be compelled to do which they are forbidden to do by the statute. For this reason, the court finds that their Brady and discovery obligations have been fully satisfied and accepts their COC.

A question remains, though: does this mean that the defendant cannot access and utilize the potentially powerful impeaching evidence? The court thinks not. The Court of Appeals recognized in the seminal case of Matter of Hynes v Karassik that despite the "stringent safeguards by which court records may remain confidential" (47 NY2d at 664), courts are "not {**67 Misc 3d at 399}impotent" to unseal records "in order to serve fairness and justice" (id.). This power stems from "discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice" (id.). It must be exercised "rarely" and only in "extraordinary" cases (id.; see also Matter of Dondi, 63 NY2d 331, 338 [1984] ["Such discretionary power may be invoked, however, only upon a compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation . . . cannot be accomplished"]).

The facts of the case at bar compel the court to conclude that an unsealing order for an in camera inspection of the relevant information is warranted. To start, "[i]t is well established that [*5]policy interests underlining a statutory privilege must yield where the defendant's constitutional rights of confrontation and due process outweigh the need for confidentiality" (People v Davis, 168 Misc 2d 26, 31 [1995], citing Davis v Alaska, 415 US 308 [1974]). As recently recapped by the Court of Appeals in Rouse, a defendant has a constitutional right to confront the witnesses about their prior incredible testimony given under oath (People v Smith, 27 NY3d 652 [2016]). Adding to this constitutional dimension is the fact that the defendant does not have a way to obtain the information elsewhere (cf. Van Loon v Moskowitz, 172 AD2d 749 [2d Dept 1991] [motion to unseal the plaintiff's sealed criminal case was not warranted where there were other sources of information available to the defendants]).

Moreover, public policy concerns gravitate toward granting the unsealing order. At a micro level, an inspection could aid in the truth-seeking function of the hearings and trial by permitting the defense to have the relevant material that may be used to impeach the witness's testimony. At a more macro level, the court's inspection helps boost the public's confidence in our judicial system by ensuring that a police witness whose testimony was found incredible as a matter of law is not shielded from potential cross-examination, provided that it is relevant to the case at hand, if such officer caused the result, at least in part, by his or her incredible testimony (cf. People v Sosa, 118 AD3d 509, 510 [1st Dept 2014] ["The court providently exercised its discretion in declining to unseal or review the sealed file of a case that was, at best, marginally related to the present case"]). The statutory rule cannot be construed in {**67 Misc 3d at 400}such a way to allow a law enforcement officer's bad acts to be protected from public scrutiny.

Compared to these considerations, potential harm to the individual whose case may temporarily be unsealed for an in camera inspection is minimal. The individual's name, address, phone number or other identifying information will not be made public. In this regard, the court's ruling comports with the basic principle that the person whose case was favorably terminated "suffers no stigma as a result of his having once been the object of an unsustained accusation" (Hynes at 662; People v Anonymous, 161 AD3d 401 [1st Dept 2018]).

[2] Based on all of these reasons, the court concludes that justice demands an in camera inspection of the records in question to determine (1) if the sealed records contain relevant and material evidence that the defendant may use to impeach the credibility of the witnesses at trial; and if so, (2) the extent and the amount of information that must be disclosed. Therefore, in accordance with this ruling, the court orders unsealing of docket No. 2018BX042208 for the limited purpose of conducting an in camera inspection of the complaint, documents contained in the court file and any transcript from relevant court proceedings. The case will be resealed upon completion of the in camera inspection except to the extent that the court deems appropriate to release information to the parties in the instant case.

As the court does not intend to divulge any identifying information of the individual who was involved in the sealed case, the court deems it unnecessary to contact the individual in whose favor the case was terminated to be heard on the temporary and limited unsealing of his or her records. If the circumstance changes and the court deems it necessary, the court will notify such individual and counsel to allow him or her an opportunity to be heard.

2. Evidence from the IAB Investigation

After the oral argument on January 23, 2020, the court directed the People to provide all of the documents in their possession from the IAB investigation for an in camera inspection. The People emailed a two-page document titled "New York City Police Department Central Personnel Index" for Officer Dmitry Lyubchenko. Significantly, this document lists the charges filed against the officer and the results of the investigation without providing the underlying facts. The defendant urges the court to direct the People to obtain additional materials{**67 Misc 3d at 401} from the IAB investigation and, to the extent necessary, from an investigation by the Civilian Complaint Review Board (CCRB).^[FN3] The court rejects the defendant's request.

Civil Rights Law § 50-a provides that

"[a]ll personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order."

This law was enacted in 1976 to curtail the abusive exploitation of personally damaging information contained in law enforcement officers' personnel records. The law sought to prevent the disclosure of those records "except when a legitimate need for them has been demonstrated sufficiently to obtain a court order" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154-155 [1999]).

When a party seeks to access personnel records of police officers, the interest in protecting the confidentiality of personnel and disciplinary records of law enforcement officers is balanced against the defendant's Sixth Amendment right to confront and cross-examine adverse witnesses (see Gissendanner; see also Pennsylvania v Ritchie, 480 US 39 [1987] [state's interest in confidentiality of child abuse investigations records must be balanced against a defendant's right to confrontation]; Davis v Alaska [state's interest in protecting confidentiality of juvenile offender's records cannot require yielding of criminal defendant's constitutional right to confrontation]). The party seeking disclosure must make a "clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a [2], [3]; Gissendanner at 551).

In this case, the language contained in the IAB report mirrors the People's disclosure—that Officer Lyubchenko received a partially substantiated complaint for an incomplete/inaccurate property clerk invoice on August 5, 2019, and that it was closed without any action being taken. Apart from this, the remaining charges against the officer were found to be unsubstantiated. Then, as a threshold matter, "the District Attorney had no duty to disclose the unsubstantiated allegations of misconduct that had been filed against the officers at the{**67 Misc 3d at 402} time of the suppression hearing" (People v Ortega, 12 Misc 3d 1182[A], 2006 NY Slip Op 51381[U], *5 [Sup Ct, NY County 2006]). Moreover, the court is unpersuaded by the defendant's argument that this finding is material and relevant to the issue of how the officer collected and maintained the defendant's breath sample in this case. Based on the failure to make a sufficient showing, the defendant's request to compel the People to obtain information and relevant documentation from the IAB and CCRB investigation is denied (see e.g. People v Perez, 44 AD3d 417 [1st Dept 2007] [in a buy and bust case, the undercover officer's disciplinary records contained nothing that was "relevant and material" and could not be compelled to be produced under Civil Rights Law § 50-a]; People v Hall, 243 AD2d 651, 651 [2d Dept 1997] ["Contrary to the defendant's contention, the trial court properly denied his application to review the personnel files of the police witnesses since he failed to present 'some factual predicate' supporting such disclosure"]). The People are reminded, however, that they have a continuing obligation under Brady; should any information come to light that must be turned over to the defense, they must do so in a timely fashion.

"make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided, that the prosecutor shall not be required to obtain by subpoena duces tecum demanded material which the defendant may thereby obtain" (former CPL 240.20 [2] [emphasis added]).

A key difference between the old and the new statutes is that the old statute dealt with "property" while the new statute expanded it to "material or information."