The People of the State of New York, Plaintiff, v  Daren Swift, Defendant.

Supreme Court, Bronx County, April 30, 2021

New York City Police Department Legal Bureau, New York City (Christopher D. Williams of counsel), for New York City Police Department, movant.

Darcel D. Clark, District Attorney, Bronx (Danielle M. Olivero and Joshua Brister of counsel), for plaintiff.

The Bronx Defenders, Bronx (Oded Oren and Nayantara Bhushan of counsel), for Daniel Castellanos, defendant.

The Legal Aid Society, Criminal Defense Practice, Bronx (David Hymen and Esmeralda Daci of counsel), for Paul Castellanos, Jr., defendant.

The Bronx Defenders, Bronx (Naomi Oberman-Breindel of counsel), for Daren Swift, defendant.

In these cases, defendants challenged the People's certificates of compliance (COC) based on, as relevant here, the disclosure of only a list of substantiated misconduct complaints for testifying police officers. Although this court earlier ruled that the People had to provide underlying documents for both substantiated and unsubstantiated complaints, the New York City Police Department (NYPD) refused to provide records for the unsubstantiated complaints without a subpoena. The People prepared the subpoenas, the court signed them, and the NYPD now moves to quash them. After review of the relevant case law, multiple submissions by the parties and defense counsel as amici, as well as extensive oral arguments, the court denies the motions to quash and orders the NYPD to comply with the lawfully issued subpoenas.

Defendant Daren Swift is charged under indictment No. 02373-2019 with assault in the first degree and other crimes. In an unrelated case, Daniel Castellanos and Paul Castellanos{**72 Misc 3d at 373} are charged under indictment No. 00430-2019 with attempted murder in the second degree and other crimes. To comply with their new obligations under the 2020 discovery reforms, the People filed an automatic discovery form and a COC in each case on January 17, 2020. Defendants then challenged the validity of the COCs on multiple grounds. As relevant to these motions to quash, in both cases defendants argued that, pursuant to CPL 245.20 (1) (k) (iv), it was insufficient for the People to provide only a list of substantiated misconduct complaints for testifying police officers. In Swift, defendant argued he was also entitled to unsubstantiated complaints and underlying documents for both.^[FN1] In Castellanos, [*2]defendants argued they were entitled to all underlying documents for all misconduct complaints, including those complaints that were determined to be unsubstantiated, unfounded, exonerated or truncated. In each case, this court ruled that the People had to provide both substantiated and unsubstantiated complaints from both the Civilian Complaint Review Board (CCRB) and the NYPD. The court further ruled that a list was not sufficient and that the People had to provide underlying documents.^[FN2]

To comply with the court's rulings, the People provided defendants with underlying documents for substantiated and unsubstantiated complaints that were either in their possession or obtained from the CCRB. However, they were unable to provide documents for the unsubstantiated complaints from the NYPD, as the NYPD would not provide any records to the People without a subpoena. The People prepared subpoenas for the case files for unsubstantiated complaints for the testifying officers in each case and the court signed them. The NYPD then filed these motions to quash the subpoenas.

The defendants' challenges to the People's COCs raised two key issues regarding CPL 245.20 (1) (k) (iv) as it relates to police officers' disciplinary records. First, whether the statute requires disclosure of all misconduct complaints, regardless of the finding. Second, whether a mere list or summary of misconduct complaints is sufficient. The NYPD takes no position{**72 Misc 3d at 374} on the first issue, arguing only that, regardless of the finding, automatic discovery under this section requires the People to provide only a list.^[FN3] According to the NYPD, underlying records for misconduct complaints are only "discretionary" discovery and, as such, if defendants want to obtain those records they must follow the procedure detailed in CPL 245.30 (3).^[FN4]

1. Unsubstantiated misconduct complaints must be disclosed.

While the NYPD's motions raise no issue as to whether unsubstantiated findings must be provided under CPL 245.20 (1) (k) (iv), this issue was litigated at some length prior to the issuance of the subpoenas. The People initially opposed providing even a list of unsubstantiated misconduct complaints; defendants argued for disclosure of all complaints, regardless of the findings. The court adheres to its prior oral rulings that to satisfy their discovery obligations, the People must disclose records regarding both substantiated and unsubstantiated misconduct [*3]complaints. According to the CCRB, an unsubstantiated finding is one where "the available evidence is insufficient to determine whether the officer did or did not commit misconduct" (New York City, Civilian Complaint Review Board, Case Outcomes, https://www1.nyc.gov/site/ccrb/investigations/case-outcomes.page [last accessed Apr. 30, 2021]). The NYPD acknowledged using the same definitions in its investigations. Unlike truncated, exonerated, and unfounded complaints, the underlying facts of substantiated and unsubstantiated findings may provide a good faith basis for cross-examination. (See People v Randolph, 69 Misc 3d 770 [Sup Ct, Suffolk County 2020]; see also People v Akhlaq, 71 Misc 3d 823 [Sup Ct, Kings County 2021]; People v Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., indictment No. 01866-2019; People v Cooper, 71 Misc 3d 559 [Erie County Ct 2021].^[FN5])

{**72 Misc 3d at 375}2. Underlying records for both substantiated and unsubstantiated misconduct complaints must be provided.

In relevant part, CPL 245.20 (1) (k) (iv) requires the prosecution to provide "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness." In arguing that this subsection requires only a list, the NYPD relies on several cases that held the People's automatic discovery obligations were satisfied by providing a summary of misconduct complaints without any underlying documents. (People v Davis, 70 Misc 3d 467 [Crim Ct, Bronx County 2020]; accord People v Knight, 69 Misc 3d 546, 550 [Sup Ct, Kings County 2020]; People v Gonzalez, 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020]; People v Suprenant, 69 Misc 3d 685, 693 [Glens Falls City Ct 2020].) This court respectfully disagrees with its colleagues.

Because misconduct complaints may, in fact, be impeachment material (at least those complaints that have been substantiated or unsubstantiated), a summary that gives only a general description of that misconduct is not sufficient. Summaries, certainly the ones at issue here, lack any significant substance or detail about the nature or extent of the misconduct. Defendants are entitled to more. Defendants are entitled to detailed information so they can understand the specific nature and degree of the misconduct, determine its relevance to a particular defense, and prepare arguments as to its use on cross-examination at hearing and trial.

The court holds that when the statute explicitly states "all" information and evidence that tends to impeach credibility, the statute means just that: all underlying records for substantiated and unsubstantiated misconduct complaints must be provided by the People. (See People v Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., indictment No. 01866-2019 [underlying documents must be provided]; People v Green, Sup Ct, Bronx County, Feb. 4, 2021, Marcus, J., indictment No. 01709-2019 [same]; Randolph [same]; Cooper [same]; People v Porter, 71 Misc 3d 187 [Crim Ct, Bronx County 2020] [disclosure letter not sufficient].) In so ruling, this court is compelled by the overarching legislative policy behind the discovery reforms which favor disclosure. The statutory language itself dictates that "[t]here shall be a presumption in favor of [openness{**72 Misc 3d at 376} and] disclosure when interpreting . . . section 245.20 [1] of this article." (CPL 245.20 [7].) Significantly, the legislature's repeal of Civil Rights Law § 50-a, which neither enhanced nor [*4]diminished the People's obligations under the discovery statute, further reflected a strong legislative policy promoting transparency of police disciplinary records and eliminated any claim of confidentiality in them. (See Randolph, 69 Misc 3d at 771-772.) Defendants' arguments regarding the repeal of section 50-a are also persuasive. If any citizen can now file a Freedom of Information Law (FOIL) request for these records and (eventually) obtain them, it makes no sense that, in a criminal proceeding, the People's obligations do not extend to providing records which are potential impeachment material for the police witnesses.^[FN6]

Disclosure, however, does not presume use. Whether defendants may use any of these records at hearing or trial is a decision left to the sound discretion of the trial court. That court must balance the nature of the misconduct allegation, the police officer's role in the case, and the possibility of prejudice or confusion. (People v Rouse, 34 NY3d 269, 280 [2019]; see also People v Smith, 27 NY3d 652, 660 [2016].)^[FN7]

In support of its position that lists are sufficient, the NYPD argues that the revised discovery statute did nothing more than codify existing Brady/Giglio jurisprudence, which required only that "essential information" be provided. In this regard, the NYPD's reliance on People v LaValle (3 NY3d 88 [2004]) is misplaced. The defendant in LaValle had direct personal knowledge of what was contained in the undisclosed witness statements that were at issue in that case. Here, defendants have no such knowledge regarding the underlying misconduct allegations. Despite the NYPD's characterization, the lists fail to{**72 Misc 3d at 377} provide the essential information defendants need. (See People v Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., indictment No. 01866-2019.) Nor does the court agree that the statute merely codified existing Brady/Giglio law. (See id. [holding that new discovery statute broadened the People's obligations by eliminating Brady doctrine's materiality requirement].) On the contrary, the discovery statute now imposes upon the People an affirmative obligation to ferret out and ascertain whether any material responsive to the dictates of subdivision (1) exists. (CPL 245.20 [2].) Moreover, since the new discovery statute was meant to reduce discovery delays, it makes little sense to limit the required disclosure "and shift the burden to the defense to attempt to learn the specifics" of a misconduct complaint through a subpoena or a FOIL request. (People v Smith, Sup Ct, Kings County, Feb. 24, 2021, Johnson, J., indictment No. 01866-2019, slip op at 4.)

The NYPD's argument that underlying records are not subject to automatic discovery [*5]also relies heavily on the prefatory language of CPL 245.20 (1), which states: "[t]he prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case." (Emphasis added.) The statute goes on to detail an extensive but not exhaustive list of the material the People must provide. The NYPD argues that, because impeachment material is not "subject matter of the case," there is no obligation to provide anything more than a list or summary of that material. This is wrong. While section 245.20 (1) uses the language "subject matter of the case," this cannot be interpreted to limit the People's obligation to provide impeachment material under CPL 245.20 (1) (k) (iv). Impeachment evidence has never been restricted to material related only to the particular case, such as inconsistent statements, omissions, or misconduct. (See e.g. People v McCray, 23 NY3d 193 [2014] [mental health records]; People v Hunter, 11 NY3d 1, 6 [2008] [concerning impeachment of the victim through previous, allegedly false, rape complaints]; People v Williams, 7 NY3d 15 [2006] [Brady violation where People did not disclose that police witness lied before grand jury in unrelated case].) If this interpretation is accepted, the People would have no obligation to provide even substantiated misconduct complaints that were unrelated to the police officer's conduct in the particular case. While reasonable judicial minds may differ as to the extent of the information necessary to satisfy the People's obligations, it cannot be{**72 Misc 3d at 378} because that information is not technically the subject matter of the case.

By arguing that underlying records are not related to the "subject matter of the case," the NYPD seeks to exempt itself from the statute's mandate that such materials are deemed to be in the possession of the People. Section 245.20 (2) states in relevant part, "[f]or purposes of subdivision one of this section, all items 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." Whether "related to the prosecution of a charge" is the same as "subject matter of the case" or has a broader meaning, this court rules that the records for substantiated and unsubstantiated misconduct complaints are impeachment material under CPL 245.20 (1) (k) (iv) that are in the possession of the NYPD and are deemed to be in the People's possession pursuant to the statute. As such, the NYPD must provide them to the People.

Moreover, the NYPD's position that the only way to obtain the underlying documents for misconduct complaints is the one detailed in CPL 245.30 (3), or through a FOIL request, creates serious roadblocks to the People's duty and ability to fully comply with their obligation to "make . . . diligent, good faith effort[s] to ascertain the existence of material or information discoverable under [section 245.20 (1)]." (CPL 245.20 [2].) When pressed during oral argument on its position, the NYPD had to acknowledge that its interpretation would prevent the People from obtaining any records to determine if the records are impeachment material in the first instance. When questioned by this court as to how the People would ever be able to obtain the underlying documents, the NYPD posited that there was no mechanism for the People to do so, but for a FOIL request. This cannot be the case and borders on the absurd.

The court also notes that the NYPD conveniently ignores the contradictory nature of its own argument. If this material is not automatically discoverable because it is not related to the subject matter of the case within the meaning of CPL 245.20 (1), as the NYPD argues, then it cannot be obtained as discretionary discovery pursuant to CPL 245.30 (3), which also requires that the information be related to the subject matter of the case.

Finally, it should be noted that discretionary discovery pursuant to CPL 245.30 (3) [*6]requires the court to find that the material{**72 Misc 3d at 379} or information sought is reasonably likely to be material. By signing the People's subpoenas pursuant to CPL 610.20 (4), this court has already determined that the underlying documents are reasonably likely to be relevant and material to the trials in these cases.

Based on the foregoing, the NYPD's motions to quash the subpoenas are denied. The NYPD is directed to comply with this court's subpoenas and provide the People with the underlying documents requested by the subpoenas.