Opinion
2049/19
03-15-2021
The PEOPLE of the State of New York v. Mohammed AKHLAQ, Defendant.
Appearing on behalf of the People: Assistant District Attorney Jonathan Hagler, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201 Appearing on behalf of the defendant: Douglas G. Rankin, Esq., Law Offices of Douglas G. Rankin, 175 Pearl Street, Brooklyn, NY 11201
Appearing on behalf of the People: Assistant District Attorney Jonathan Hagler, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
Appearing on behalf of the defendant: Douglas G. Rankin, Esq., Law Offices of Douglas G. Rankin, 175 Pearl Street, Brooklyn, NY 11201
Jill Konviser, J. By Indictment Number 2049/19, the defendant is charged with Burglary in the Second Degree, Attempted Assault in the Second Degree, two counts of Aggravated Criminal Contempt, four counts of Criminal Contempt in the First Degree, and related charges, for a series of offenses alleged to have occurred between July 7, 2018 and March 25, 2019, including an incident where he is said to have pushed his way into the complaining witness's home and attempted to cut her wrists with a razor. Subsequently, and while that indictment was pending, the defendant is alleged to have committed a series of additional offenses against the same complaining witness, between July 1, 2019 and November 16, 2019, including an incident where, as she was pushing her child in a stroller, he allegedly punched her in the head and stole her cell phone. For those offenses, the defendant is charged under indictment number 7243/19, with five counts of Criminal Contempt in the First Degree, Robbery in the Third Degree, two counts of Stalking in the Fourth Degree, Endangering the Welfare of a Child, and related charges.
The aforementioned indictments were consolidated on September 9, 2020.
The defendant now challenges the certificate of compliance filed by the People on October 28, 2020. The defendant claims — in a single paragraph — that the People's certificate of compliance is infirm as they failed to provide, pursuant to the newly enacted Criminal Procedure Law Section 245.20(1)(k)(iv), "police disciplinary records" and "police personnel records ... now made available" by the repeal of Civil Rights Law § 50-a. To begin, and as is relevant here, C.P.L. § 245.20(1)(k)(iv) requires that the People disclose "evidence and information ... that tends to ... impeach the credibility of a testifying prosecution witness," and, once the People have provided that evidence and information, they must "serve upon the defendant and file with the court a certificate of compliance." C.P.L. § 245.50(1). The certificate of compliance certifies that the People have exercised "due diligence" and made "reasonable inquiries" in obtaining and providing discoverable materials and must be filed "in good faith" and "identify the items provided." C.P.L. § 245.50(1).
C.P.L. § 245.20(1)(k)(iv) essentially codified Giglio and its progeny. See William C. Donnino, Practice Commentary, McKinney's Cons. Laws of NY, C.P.L. § 245.10.
Also relevant here, in repealing Civil Rights Law § 50-a ( "50-a"), the Legislature proclaimed that public policy dictates against automatically shielding certain portions of police personnel files from public inspection. To that end, information related to allegations of misconduct may now be released consistent with New York's Freedom of Information and Public Officers Laws.
Courts have been exploring how best to deal with these changes. See People v. Cooper , 71 Misc.3d 559, 143 N.Y.S.3d 805, 2021 N.Y. Slip Op. 21039 (Erie Co.) ; People v. Smith , 1866/2019 (unreported) (Kings Sup. 2021); People v. Altug , CR-009552-20NY (unreported) (NY Crim. Ct. 2021); People v. Green , 1709/2019 (unreported) (Bronx Sup. 2021); People v. Randolph , 69 Misc. 3d 770, 132 N.Y.S.3d 726 (Suffolk Sup. 2020) ; People v. Gonzalez , 68 Misc. 3d 1213(A), 2020 WL 4873901 (Kings Sup. 2020) ; People v. Knight , 69 Misc. 3d 546, 130 N.Y.S.3d 919 (Kings Sup. 2020) ; People v. Davis , 70 Misc. 3d 467, 134 N.Y.S.3d 620 (Bronx Crim. Ct. 2020) ; People v. Suprenant , 69 Misc. 3d 685, 130 N.Y.S.3d 633 (Glens Falls City Ct. 2020).
In this case, and as required by C.P.L. § 245.50(1), appended to the People's certificate of compliance are documents that contain descriptions of misconduct for each testifying prosecution witness for whom such records exist. That information is culled from Internal Affairs Bureau files ("IAB"), Civilian Complaint Review Board files ("CCRB"), Police Department personnel files, and civil lawsuits. For each such witness, the People provide the officer's name and tax identification number, the date of the allegation, and the source of the information — IAB, CCRB, the personnel file, and/or a civil lawsuit. In addition, they provide a narrative of the allegation, including the precise nature of the misconduct and a general description of the individual who made the allegation. Also provided are the investigative steps taken by the Bureau, Board, or Department. Details regarding the result of any investigation or departmental trial, including punishment meted out, from suspension, to forfeiture of vacation days, to imposition of a command discipline, are also included. And, where a civil lawsuit is still pending, the People so indicate.
The foregoing makes plain that the defendant received that to which he is entitled. Indeed, the documents provided by the People contain detailed information with respect to disciplinary records that may tend to impeach the credibility of testifying witnesses. The People, in good faith, discharged their obligations pursuant to C.P.L. § 245.20(1)(k)(iv), and the defendant's challenge to the People's certificate of compliance on that basis is, therefore, denied.
The defendant additionally claims that the repeal of 50-a now requires the People to provide "police personnel records." Not so. The repeal of 50-a does not automatically entitle the defendant to the entirety of a police officer's personnel file. Rather, it makes personnel files subject to inspection, pursuant to already existing Freedom of Information and Public Officers Laws. And, by providing impeachment information culled from the personnel files of testifying police witnesses, described supra , the People, in good faith, discharged their obligations pursuant to C.P.L. § 245.20(1)(k)(iv) — the repeal of 50-a imposed no additional obligation. See People v. Mauro , 71 Misc.3d 548, 143 N.Y.S.3d 511, 2021 NY Slip Op. 21035 (Westchester Co.). Accordingly, the defendant's challenge to the People's certificate of compliance on that basis is similarly denied.
Finally, the People, in a further good faith effort to discharge their discovery obligations, submitted for the Court's in camera inspection, a series of unsubstantiated allegations of police misconduct. The Court, having reviewed those records, now directs the People to provide to the defendant all unsubstantiated allegations of police misconduct against police officers whom the People intend to call as witnesses at trial. The People may do so using the precise format by which the prior disclosures in this case were made. Conclusion
As noted, supra , the law with respect to whether unsubstantiated allegations of police misconduct fall under the C.P.L. § 245.20(1)(k)(iv) umbrella remains unsettled.
This Court makes no determination with respect to the admissibility of any unsubstantiated allegations of police misconduct at trial.
The defendant's challenge to the certificate of compliance is denied. The People are reminded of their continuing Brady and Article 245 obligations. This constitutes the Decision and Order of this Court.
The People's contention that the defendant's motion should further be denied as it was not filed within 45 days of arraignment as required by Criminal Procedure Law Section 255 is unavailing. Indeed, as the People concede, the defendant was unable to file the instant motion until they had filed their certificate of compliance — after the 45-day period had already elapsed.
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