Opinion
No. 2484/12.
2013-05-13
The PEOPLE of the State of New York, v. Dominique PETERS and Michael Castro, Defendants.
ELIZABETH A. FOLEY, J.
Defendant Castro moves, pursuant to Civil Rights Law § 50–a, for a so-ordered subpoena directing non-party New York City Police Department (“NYPD”) to deliver disciplinary records and records of Internal Affairs Bureau (“IAB”) investigations regarding four individually named police officers, under seal for an in camera inspection by the Court, insofar as defendant alleges that such records contain evidence relevant and material to the defense of the instant criminal matter. After a review of the moving papers, non-party New York City Police Department's opposition to the issuance of a subpoena calling for production of documents in its custody and control, the Supreme Court file and relevant statutory and case law authority, the motion is denied.
The Court notes the instant application, filed February 21, 2013, is virtually identical to a motion filed December 21, 2012, including a requested return date of January 18, 2013, but for the omission of a proposed subpoena for the Court's consideration. In light of defendant's more recent submission, the prior motion is deemed abandoned. The Court further notes that there is no affidavit of service accompanying either of defendant's two mirror image motions; however, in its opposition the NYPD acknowledges receipt of the more recent application—which lacks a proposed subpoena—and does not contest the issue of proper notice upon itself.
Defendants are charged with Criminal Possession of a Weapon in the Second and Fourth Degrees in connection with their alleged possession of a loaded handgun recovered by the police from the bathroom of apartment 4 located at 538 Logan Street, Brooklyn New York, on or about March 23, 2012, upon obtaining written consent of the apartment owner to enter his residence and search therein. The Court has sustained the Indictment by Decision and Order dated September 12, 2012 following an in camera review of the pertinent Grand Jury minutes.
Civil Rights Law § 50–a(1), (2) provides:
All 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.
Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.
As the Court of Appeals instructed in People v. Gissendanner, 48 N.Y.2d 543 (1979), disclosure after an in camera inspection may be warranted “when a defendant shows a likelihood that a witness' prior criminal or disciplinary record may provide a motive to falsify” or “when prior bad acts allegedly contained within disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant's case.” However, a defendant is required to put forth in good faith “some factual predicate” making it reasonably likely that the file contents would yield relevant material which may be determined to “directly bear on the hard issue of guilt or innocence.” Id., at pp. 549–550.
In support of the instant application, counsel for defendant Castro alleges the apartment owner “never signed a consent to search form nor did he provide valid consent to search” and the police entered his apartment illegally. If such is the case, in the Court's view, the proper course would be to seek suppression. Moreover, such an allegation is unsubstantiated, supported merely by a recitation of what defendant purportedly told his attorney, i .e., that the police forced their way into the apartment and threatened the owner, prompting the owner to falsely accuse defendant. Upon such scant evidence, a conclusion that the factual predicate supporting production and inspection of NYPD personnel disciplinary records or IAB investigatory records may not be based. Defendant has failed to even establish that “prior misconduct” of any sort has been found, or documented, by the NYPD against any of the four officers which are the subject of defendant's subpoena request; apparently, the genesis of defendant's request is a letter dated October 5, 2012 from the People, which discloses only that the officers involved in defendant's arrest “are currently under investigation by the NYPD's Internal Affairs Bureau for their involvement in arrests where Consent-to-search' documents were signed,” but whether or not such investigation is ongoing or has been concluded in unknown, as are a preliminary or final report of findings, if any. Defendant points to a civil lawsuit brought by a criminal defendant whom the local District Attorney declined to prosecute, involving two of the officers here, which apparently settled upon undisclosed terms and without any acknowledgment of fault or liability, and to a different criminal case involving another of the officers, where the court, inter alia, suppressed physical evidence following a Mapp hearing largely upon the basis of police witness credibility. Defendant does not offer any similar situation regarding the fourth officer who was involved in defendant's arrest. Although each of these two unrelated cases encompasses allegations of illegal entry into a home, neither one lends any credence to defendant's unfounded contentions that all four of these officers have engaged in a “pattern of misconduct” and that “there is a likelihood that the police officers' prior disciplinary records, combined with their unlawful entry and coercive behavior in [the apartment owner's] home, may provide a motive to falsify their statements supporting the indictment or trial testimony.” While this Court does not so find, perhaps the “information” at hand may, subject to judicial discretion, provide material for cross examination at trial. In any event, at this stage, there has been no “clear showing of facts” sufficient to warrant a request for records, and defendant has failed to demonstrate a sound basis for an examination beyond conjecture as to the contents of the records sought. See, generally, People v. Landa, 28 AD3d 582 (2006); People v. Andino, 291 A.D.2d 242 (1st Dept.), lv denied,98 N.Y.2d 648 (2002). Consequently, having failed to meet the standards set forth in People v. Gissendanner, supra, permitting the Court to compel production of police personnel records from the NYPD, defendant's application must be denied.
In light of the above determination, the Court does not reach the issue of notice ( see,Civil Rights Law 50–a[2] ), but must point out that such notice of the instant motion as was provided here may not have been sufficient. In the Court's opinion, the better practice would be to properly substantiate that notice has been given—for example, via affidavit or affirmation of service filed with the Court—to all “interested parties”, i.e., not only the owner/custodian of the records sought, but also the People and the individuals about whom such records were generated, in order to adequately ensure a full opportunity to be heard.
Accordingly, for all the foregoing reasons, it is hereby
ORDERED, that defendant Castro's motion for a subpoena to be so-ordered by the Court is denied.