Criminal Court of the City of New York, Bronx County, April 10, 2023

Darcel D. Clark, District Attorney (John Longo of counsel), for the People.

The Bronx Defenders (William John of counsel) for defendant.

Summary

The People's motion, dated April 4, 2023, for a protective order is denied.

Defendant, Marques Payne, stands charged in an information with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving while ability impaired by alcohol (Vehicle and Traffic Law § 1192 [1]) and operating a motor vehicle without a license (Vehicle and Traffic Law § 509 [1]). This matter has a somewhat winding history, including multiple motion schedules and court orders that are in large part, thankfully, not germane to the instant motion by the People, dated April 4, 2023, for a protective order. That being said, some background is helpful.

In a decision and order dated February 10, 2023, the court (Giyang An, J.) ordered the People, inter alia, to locate, obtain and turn over to the defense undisclosed Internal Affairs Bureau (IAB) logs concerning named NYPD officers, which the People did. However, on March 31, 2023, defendant informed this court that the logs contained "unilateral redactions." The assigned assistant district attorney (AADA) explained that, although the request had been made, the NYPD had yet to provide unredacted IAB logs to the People. Nevertheless, the AADA continued, "our position [is] that we have exercised nothing but good faith, due diligence and reasonableness. There are redactions but they don't relate to the particular officer."

At the conclusion of the March 31st oral arguments, this court ordered the People to turn over the unredacted IAB logs to the defense by April 14, 2023, or to submit a motion for a protective order, and adjourned the matter to May 8, 2023, for hearings and trial. Off-calendar, on April 4, 2023, the People filed and served the instant motion for a protective order classifying{**79 Misc 3d at 829} the IAB logs as protected discovery and deeming the redacted IAB logs already turned over to [*2]the defense satisfactory to this court's March 31st oral discovery order. Defendant has not been granted an opportunity to respond to this motion.

Neither of the People's motion's primary two points provides a factual or legal good-cause basis for this court to permit redactions of these discoverable IAB logs. In point one, the People more or less rehash the March 31st oral averment made by the AADA that the redacted portions of the IAB logs are irrelevant to the defense. In the motion, the People contend, with claimed examples, that the "redactions [are] of irrelevant and non-discoverable information." The People then argue in their motion that, because the "IAB redactions relate[ ] to material that is not subject to discovery, as it is not related to the subject matter of the instant matter nor do they relate[ ] to the credibility of the testifying officer at issue, . . . this material is non-discoverable."

The Court of Appeals has made clear that "the potential impeachment value of [discoverable material] could best be determined by the 'single-minded counsel for the accused' and that the trial court's evaluation [is] an inadequate substitute" (People v Banch, 80 NY2d 610, 615 [1992], quoting People v Rosario, 9 NY2d 286, 290 [1961]). Thus, a fortiori, the People's evidentiary determination concerning the redacted portions of the IAB logs—no matter how credible and objective one may believe it to be—is too inadequate a substitute for that of defense counsel to serve as justification for issuing a protective order over this discoverable material (see CPL 245.20 [1] [k]).

The People's second point, that some of the IAB documentation concerns disciplinary complaints against one or more officers that were found by IAB investigators to be "unsubstantiated," is unpersuasive. Because, again, the best evaluation of the potential impeachment value of discovery comes from the "single-minded counsel for the accused"—not IAB investigators—

"it bears no consequence on the People's discovery obligation whether a disciplinary record is substantiated, unsubstantiated, or exonerated. Disciplinary records . . . are created after NYPD investigates the alleged misconduct of its own officers . . . . The results of the NYPD . . . investigations in-and-of-themselves are not the final determination on whether the underlying records 'tend {**79 Misc 3d at 830}to impeach' a witness. The 'single-minded counsel for the accused' must review the material and prepare whatever impeachment argument available based on the individual records, and the admissibility of impeachment is ultimately decided by a trial court; to hold otherwise conflates discovery with admissibility at hearing or trial.

"The court will not be bound by civilian terms of art such as 'unfounded, substantiated, or unsubstantiated' nor give those labels full legal weight to withhold underlying records from the discovery process. Likewise, the legislature did not enact CPL 245.20 (1) (k) with the proviso that only founded or substantiated claims of police misconduct, as determined by a civilian agency or the NYPD, should be discoverable. The statute is clear and unambiguous: 'tends to impeach' is the only requirement for CPL 245.20 (1) (k) material; categorically, disciplinary records of testifying witnesses 'tend to impeach', and whether the individual records ultimately do or do not impeach is for litigation outside the discovery statute" (People v Rugerio-Rivera, 77 Misc 3d 1230[A], 2023 NY Slip Op 50069[U], *4 [Crim Ct, Queens County 2023] [internal quotation marks and citation omitted]; see People v Darren, 75 Misc 3d 1208[A], 2022 NY Slip Op 50415[U], *3-4 [Crim Ct, NY County 2022] [holding, with citations, "that CPL 245.20 (1) (k) (iv) requires disclosure of records underlying substantiated and unsubstantiated disciplinary allegations of misconduct before a valid [*3]COC can be filed"]).

The motion concludes with a hodgepodge of generalized concerns the People aver could result from the denial of a protective order:

"To require the People to move for a protective order to withhold or redact material not relating to the subject matter of this case, would functionally require the People to make a protective order application in virtually all of our cases. The redacted information has legitimate privacy and safety concerns in addition to the information not being related to the officer's credibility. Allowing defense to have access to this information is no way advantageous to the People or detrimental to the defense.{**79 Misc 3d at 831} This would not only create an undue burden on the People, but also on the courts."

These arguments are unpersuasive. First, this court will not "require the People to move for a protective order to withhold or redact material not relating to the subject matter of this case" because, again, the People's evidentiary opinions have absolutely no import in a CPL article 245 discovery analysis. This fact should diminish the People's concerns about needing to file an avalanche of protective order motions. The vague, unsupported "privacy and safety concerns" and "undue burden on the People [and] the courts" boogeymen betray the People's incorrect mindset regarding article 245. The People appear more bent on constricting the discovery statute, rather than acceding to the command of the Legislature that "[t]here shall be a presumption in favor of disclosure when interpreting . . . subdivision one of section 245.20" (CPL 245.20 [7]). If the People were to locate, obtain, and turn over to the defense discoverable material pursuant to the spirit of this presumption, the need for the filing of protective order motions would likely lessen considerably.^[FN*]

As the People have provided this court with no articulable, particularized, factual or legal, good-cause basis to decide otherwise, the motion for a protective order is denied. The People are reminded that, per this court's oral order on March 31, 2023, unredacted IAB materials must be turned over to the defense by April 14, 2023, with the caveat that "[t]he prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure" (CPL 245.20 [1] [k]).