Opinion
CR-018600-20NY
03-19-2021
The PEOPLE of the State of New York, Plaintiff, v. Devin KELLY, Defendant.
Defendant is charged by superseding information with two counts of assault in the third degree ( Penal Law § 120.00 [1], [2] ), one count of aggravated harassment in the second degree ( Penal Law § 240.30 [4] ), one count of attempted assault in the third degree (Penal Law § 110/120.00 [1]) and one count of harassment in the second degree ( Penal Law § 240.26 [1] ). Defendant moves for an order deeming invalid the People's certificates of compliance and certificates of readiness.
Introduction
The People served discovery material on defendant on November 2, 2020, December 23, 2020, and January 5, 2021. On December 23, 2020, the People filed and served certificates of compliance and readiness. On January 5, 2021, the People filed and served supplemental certificates of compliance and readiness. The material served on January 5, 2021, included an addendum to the automatic discovery form previously filed indicating that the People intended to call as witnesses Police Officer Gerald McDougall and Police Officer Nicholas Motola. The People also served disclosure advisory forms for both officers. Officer McDougall's form stated that there were two civil actions in federal court in which he was a named defendant, a substantiated allegation of misconduct by the New York City Police Department that he failed to appear for a traffic court violation, and a decision in which Manhattan Criminal Court Judge Ann Scherzer did not credit his hearing testimony. The People also provided a copy of Judge Scherzer's decision. Officer Motola's form stated that there is a substantiated allegation of misconduct by the New York City Police Department that he failed to activate his body worn camera.
Following receipt of these materials, defense counsel informed the People that there was additional discovery to which she believed defendant was entitled. The People contended, that they had met their discovery obligations. On February 9, 2021, the Court issued an order pursuant to CPL 245.35 [1], "requiring that the prosecutor and counsel for the defendant diligently confer to attempt to reach an accommodation as to any disputes concerning discovery." Defense and the People conferred by email and telephone, but were unable to resolve their dispute. Counsel indicated that defendant would be challenging the validity of the certificates of compliance and readiness, and this motion followed. In the motion, defendant claims that the People are required to turn over:
"(1) the Internal Affair Bureau file for Officer McDougall, including at the very least any underlying materials related to the substantiated allegation of his failure to appear for a traffic court violation, (2) the Internal Affair Bureau file for Officer Motola, including at the very least any underlying materials related to the substantiated allegation of his failure to activate his body worn camera, (3) any NYPD files related to the two civil decisions where Officer McDougall is named a defendant, Jade Everett v. City of New York et al., 12-CV-1424, and Alberto Morales v. City of New York , 15-CV-06573, such as information regarding possible settlements, and (4) the two civil decisions where Officer McDougall is named a defendant, which do not appear to be publicly available" (Defendant's motion at ¶ 11).
CPL 245.20 [1] provides, "[t]he prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case." Additionally, under CPL 245.20 [1] [k] [iv], the People must provide any information that impeaches a prosecution witness's credibility. The People's position is, "this obligation does not require the People to produce all underlying records, especially when the allegations do not [1] relate to the subject matter of the case or [2] does not serve as impeachment material of a prosecution witness" (People's response at ¶ 8).
This Court, in an effort to narrow the issues, emailed the parties, seeking information about the documents in dispute. As a result, the People turned over more material and disclosed additional information to defendant. With respect to the Everett and Morales civil lawsuits, the People provided defendant with the complaints, dockets, and stipulations that the parties had reached a settlement agreement and that each case had been dismissed with prejudice. However, the People asserted that these civil suits do not provide impeachment material because they do not relate to the subject matter of the case at issue. Additionally, the People conducted a search and found three other possible civil suits in which Officer McDougall is a named defendant, Diaz v. Diaz, Miller v City of New York et al., and Velasquez v City of New York. The People indicated that these cases are not included in Officer McDougall's personnel records, so it is unclear whether he is the officer involved. However, for Miller and Velasquez , the People provided defendant with the complaints, dockets, and stipulations that the parties had reached a settlement agreement, and that each case was dismissed with prejudice. For Diaz , the People provided defendant with the complaint, docket, order to amend the caption of the case after some plaintiffs settled, judgment that the case be dismissed after a jury found in favor of defendants Lauren Diaz, Johnny Szeto and Hugh Barry, and a stipulation that the parties had reached a settlement agreement with Luis Pena and the case brought by him was dismissed with prejudice. Furthermore, the People maintain that these civil suits are not impeachment material or related to the subject matter of the case at issue. Lastly, the People stated that, with respect to the "substantiated" allegations against Officer McDougall and Officer Motola, they were in possession of each officer's personnel record but not the underlying materials. The People contend that this is not impeachment material or related to the subject matter of the case at issue and that they are not required to obtain all underlying materials or disclose personnel records.
In response to the People's additional discovery and arguments, defendant stated that he was still entitled to more material. He claimed that the People were required to provide him with: the Internal Affair Bureau/personnel files for Officer McDougall and Officer Motola related to both substantiated allegations; and any New York City Police Department files related to the civil decisions where Officer McDougall is a named defendant. Defendant disputed the People's assertion that the civil cases involving McDougall that were dismissed with prejudice were not proper impeachment material. In support of this position, he stated that according to the records of the Comptroller, the Everett, Morales, Diaz and Miller cases resulted in a total of $42,500 in settlement payouts. Defendant also indicated that based on a comparison of Officer McDougall's tax number, he was in fact a named defendant in the Diaz and Miller cases. Defendant argued that his ability to investigate and find these settlement amounts did not affect the prosecutor's discovery obligations.
Discussion
Effective January 1, 2020, the New York State Legislature greatly expanded the prosecution's discovery obligation, by enactment of Criminal Procedure Law article 245 and repeal of article 240. CPL 245.20 [1] provides a non-exhaustive list of items that the People must automatically disclose to defendant. Additionally, pursuant to CPL 245.20 [2], the People must make a diligent, good faith effort to ascertain the existence of such items, and when they exist, cause them to be made available for discovery even if the material is not within their possession, custody or control. 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 are deemed to be in the possession of the prosecution. Once the People have satisfied their automatic discovery requirements, they must file and serve a certificate of compliance pursuant to CPL 245.50. Moreover, the People cannot be deemed ready for trial until a proper certificate is filed. The statute contains a presumption of openness in favor of disclosure when interpreting its provisions ( CPL 245.20 [7] ). "[T]he prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute ‘open file’ discovery, or at least make ‘open file’ discovery the far better course of action to assure compliance" (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Criminal Procedure Law § 245.10 ).
CPL 245.20 [1] [k] codifies the People's obligation to disclose information favorable to defendant under Brady v Maryland , (373 US 83 [1963] ), Giglio v United States , (405 US 150 [1972] ), and their progeny, as well as New York State Rules of Professional Conduct, Rule 3.8 [b], and the New York State Unified Court System's Administrative Order of Disclosure (see William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Criminal Procedure Law § 245.10 ). This subdivision requires, in relevant part, the People to provide "all 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 impeach the credibility of a testifying prosecution witness .... Information under this subdivision shall be disclosed ... irrespective of whether the prosecutor credits the information" ( CPL 245.20 [1] [k] [iv] ).
The scope of the People's impeachment disclosure obligations must also be viewed in light of the June 2020 repeal of Civil Rights Law § 50-a, resulting in public access to police misconduct files. The repeal "further erodes asserted claims of confidentiality in relation to police personnel files" ( People v Porter , ––– Misc 3d ––––, 2020 NY Slip Op 20362 [Crim Ct, Bronx County 2020] ). The Second Circuit's recent affirmance in United Fire Officers Association v DeBlasio , ––– Fed Appx ––––, 2021 WL 561505 [2d Cir. Feb 16, 2021] also lends support for the presumption in favor of disclosure of these files, with a very narrow class of exceptions not relevant here.
Defendant claims that the People must provide the disciplinary files related to the substantiated allegations against both officers. He also asserts that he is entitled to any police department files related to civil actions in which Officer McDougall is a named defendant. The People's view is that they are not obligated to provide the disciplinary files since the allegations neither relate to the subject matter of the charges in this case nor are impeachment material. They describe their disclosure of this information as being done "in the abundance of caution" (People's response at ¶ 13, 16). They further argue that the repeal of Civil Rights Law § 50-a and the Second Circuit ruling do not alter their discovery obligations but rather change what information is publicly available and the procedure for the public to obtain it.
Defendant demands more than the statute requires, while the People take too narrow a view of their statutory obligations. In light of the statutory language and the repeal of Civil Rights Law § 50-a, the internal police personnel and disciplinary files are deemed to be in the People's possession (see People v Cooper , ––– Misc 3d ––––, 2021 NY Slip Op 21039 [County Ct, Erie County 2021] ; People v Altug , 70 Misc 3d 1218[A], 2021 NY Slip Op 50145[U] [Crim Ct, NY County 2021] ).
This Court is persuaded by the analysis in People v Randolph , 69 Misc 3d 770 [Sup Ct, Suffolk County 2020], in determining whether the People must provide police Internal Affairs Bureau files as impeachment material.
"[A] case is ‘substantiated’ where it is determined that the facts clearly support the allegation, ‘unsubstantiated’ when the allegation cannot be resolved because sufficient evidence is not available, ‘exonerated’ where the act was legal, proper and necessary and ‘unfounded’ when there is evidence to establish that the act did not occur. Therefore, in cases involving exonerated and unfounded allegations, there is no good faith basis for cross-examination by the defendant's counsel and as such it is not evidence or information that tends to or has an inclination to impeach a police witness. Consequently, IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery" [internal citations omitted].
"As to information required to be produced in substantiated and unsubstantiated IAB files, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. The People thus may seek an in limine ruling to preclude any cross-examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness's credibility or there is no good faith basis for the inquiry" (Randolph at 772).
Applying these principles, the Court directs that the People provide all underlying materials, or make them available to defendant, for the substantiated cases for both Officer McDougall and Officer Motola. The People must also provide, or make available to defendant, all underlying materials for any unsubstantiated allegations against these officers. Ultimately, any use of these materials for impeachment purposes fall soundly in the discretion of the trial court (see People v Smith , 27 NY3d 652 [2016] ).
The civil lawsuits involving Officer McDougall that were disclosed on January 5, 2021, Jade Everett v. City of New York et al., 12-CV-1424, and Alberto Morales v. City of New York , 15-CV-06573, were both dismissed with prejudice. Therefore, the police files for these matters do not have to be provided as part of automatic discovery (see Smith , 27 NY3d 652 ; People v Garrett , 23 NY3d 878 [2014] ; People v Davis , 70 Misc 3d 467 [Crim Ct, Bronx County 2020] ; Porter , ––– Misc 3d ––––, 2020 NY Slip Op 20362 ). Despite this, the People provided defendant with the complaint, docket and stipulation of the parties regarding a settlement for both lawsuits.
The civil lawsuits involving Officer McDougall that were disclosed in response to the Court's inquiry about materials in dispute, Diaz v. Diaz, Miller v City of New York et al., and Velasquez v City of New York, were all dismissed with prejudice. Therefore, the police files for these matters do not have to be provided as part of automatic discovery (see Smith , 27 NY3d 652 ; Garrett , 23 NY3d 878 ; Davis , 70 Misc 3d 467 ; Porter , ––– Misc 3d ––––, 2020 NY Slip Op 20362 ). Furthermore, "the People have no affirmative duty to search the dockets of every case in every federal and state court in New York for complaints against their police witnesses ( People v Garrett , 23 NY3d at 890 ). Despite this, for the Miller and Velasquez cases, the People provided defendant with the complaints, dockets, stipulations and the fact each case was dismissed with prejudice. For the Diaz case, the People provided defendant with the complaint, docket, stipulations, order to amend the caption and the fact that all matters were ultimately dismissed with prejudice.
Although the Court is directing the People to turn over additional materials, it does not find that their failure to initially provide these documents was in bad faith. At this time, there are no appellate cases analyzing the issue. This Court is aware of several decisions from lower courts that have held that the People are not required to turn over the underlying disciplinary file documents regardless of the determination of the allegation (see People v Mauro , ––– Misc 3d ––––, 2021 NY Slip Op 21035 [County Ct, Westchester County 2021] ; People v Knight , 69 Misc 3d 546 [Sup Ct, Kings County 2020] ; People v Gonzalez , 68 Misc 3d 1213[A], 2020 NY Slip Op 50924[U] [Sup Ct, Kings County 2020] ). At least one decision implies that these documents are not discoverable because the allegations do not relate to the subject matter of the charges against defendant (see People v Gonzalez , 68 Misc 3d 1213[A] ). This Court respectfully disagrees with that interpretation of the law in light of the legislative intent behind and plain language of the statute (see also Cooper , ––– Misc 3d ––––, 2021 NY Slip Op 21039 ; Altug , 70 Misc 3d 1218[A] ). However, in light of the divergence of opinions, the Court finds that the People acted in good faith and consistent with their interpretation of the law when they filed the initial and supplementary certificates of compliance and readiness (see CPL 245.50[1] ; Porter , ––– Misc 3d ––––, 2020 NY Slip Op 20362 ; Randolph , 69 Misc 3d 770 ; People v Lustig, 68 Misc 3d 234 [Sup Ct, Queens County 2020] ).
Accordingly, defendant's motion to invalidate the People's certificates of compliance and readiness is DENIED.
The People must provide defendant with the additional discovery materials no later than April 5, 2021.
The foregoing constitutes the opinion, decision and order of the Court.