Opinion
CR-007152-18QN
09-28-2018
The PEOPLE of the State of New York, Plaintiff, v. Alberto NIEVES, Defendant.
For the Defendant: Queens Law Associates (Emily T. Lurie, Esq.) For the People: Richard Brown, District Attorney, Queens County
For the Defendant: Queens Law Associates (Emily T. Lurie, Esq.)
For the People: Richard Brown, District Attorney, Queens County
Jerry Iannece, J.
The defendant is charged with obstructing governmental administration in the second degree (PL 195.05); criminal possession of a controlled substance in the seventh degree (PL 220.03); failing to signal (VTL 1163-A).
By motion filed on August 15, 2018, the defendant seeks the issuance of a subpoena duces tecum directing the New York Police Department ("NYPD") and Civilian Complaint Review Board ("CCRB") to submit personnel records pertaining to Officer Otniel Figueroa for an in camera inspection ( Civil Rights Law § 50-a ). The People informed the Court that they will not file a response and indicated that NYPD has received defendant's motion.
The Court, having reviewed defendant's moving papers, the People's response, and all Court documents contained within the Court file, concludes as follows:
Under Civil Rights Law § 50-a(1), police personnel records are "confidential and not subject to inspection or review" without (1) the express written consent of such police officer or (2) as may be mandated by lawful court order. Here, the defendant is seeking a court order; however, prior to issuing such court order, interested parties must be afforded an opportunity to be heard ( CRL 50-a[2] ). Additionally, there must be "a clear showing of facts sufficient to warrant the judge to request records for review" (id. ). Once a clear showing of facts is established, a court shall issue an order directing the records to be sent to the judge for an in camera review and order disclosure of any records that are relevant and material ( CRL 50-a[2] and 50-a[3] ).
Interested Parties ( CRL 50-a[1] )
The defendant in this case requests Officer Figueroa's personnel records from NYPD and CCRB. Therefore, notice of the subpoena application and proceeding is required to give the officer whose records are being sought, the NYPD, and CCRB an opportunity to be heard. To this end, the defendant provided affidavits of service showing that notice of the motion was served on NYPD at its headquarters located at One Police Plaza, CCRB at its headquarters, and Police Officer Otniel Figueroa at his command (compare Jiminez v. City of New York, 5 AD3d 182 [1st Dept. 2004] (service at Department of Correction headquarters was improper, where the individually named correction officers worked at Rikers Island) ). The Court finds that the affidavits of service constituted prima facie evidence of proper service on the interested parties ( People v. Ruiz , 57 Misc. 3d 1029, 1031 [Crim. Ct., Bronx County 2017] ; Frisillo v. State , 185 AD2d 616 [4th Dept. 1992] ).
"Clear Showing of Facts"
Turning to the merits of the application, the initial burden is on the party seeking disclosure to demonstrate "in good faith, ‘some factual predicate’ warranting the intrusion into the personnel records of" the officer ( Taran v. State of New York, 140 AD2d 429, 432 [1988] ; see also People v. Gissendanner, 48 NY2d 543, 550 [1979] ). While the standard is liberally construed ( People v. Valentine , 160 AD2d 325, 326 [1st Dept. 1990] ), a subpoena for an officer's personnel records is inappropriate "when requests to examine records are motivated by nothing more than impeachment of witnesses' general credibility" ( Gissendanner , 48 NY2d at 548 ).
The defendant in this case uses a settled civil suit against Officer Figueroa as a basis for the judicial subpoena for personnel records. He argues that the civil suit contains allegations that the officer unjustifiably searched, seized, and used excessive force on the plaintiff in the civil suit. Similarly, as the defendant argues, he is innocent of the charges and the officer violated his right against unreasonable search and seizure (Defendant's motion at 4).
It is unquestionable that Officer Figueroa is a key witness in the prosecution of the defendant in this case. Additionally, the defendant is correct that settled or pending civil suits which do not contain an admission or finding of guilt can be relevant to the issue of credibility and, thus may serve as a basis in Gissendanner applications ( People v. Ruiz , 57 Misc. 3d at 1032 [Crim. Court, Bronx County 2017] ; see People v. Smith , 27 NY3d 652, 661-62 [2016] ). However, the defendant must first establish a factual predicate which would make it reasonably likely that the file" will contain" information that carries a potential for establishing the unreliability of either the criminal charge or of a witness upon whose testimony it depends (Gissendanner at 550). Here, the defendant has not satisfied his burden of establishing a factual predicate, warranting an intrusion upon the officer's personnel records. Significantly, the defendant's allegations that he is innocent and his constitutional rights were violated are conclusory and offers nothing of a particularize nature to support the claim that the requested materials will bear relevant and exculpatory evidence, as opposed to general impeachment material (see Matter of County of Nassau Police Dept v. Judge , 237 AD2d 354 [2d Dept. 1997] ).
Further, defendant's stated purpose in seeking the subpoena "to confront and cross-examine Officer Figueroa about any relevant and material information contained within his personal file," casting doubt on the reliability of the officer's testimony, amounts to an impermissible fishing expedition for collateral materials to be used for impeachment purposes ( Zarn v. City of New York, 198 AD2d 220, 220—221 [2d Dept. 1993] ; People v. Cedeno , 4 Misc 3d 134(A) [App. Term, 2d, 9th and 10th Jud. Dists. 2004] ). While "a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility" ( Badr v. Hogan, 75 NY2d 629, 634 [1990] ; see People v. Schwartzman, 24 NY2d 241, 244 [1969] [same]; Matter of Edward F, 154 AD2d 464, 465 [1989] ["Evidence tending to show a witness's bias, hostility or motive to lie is not collateral, but is directly probative of credibility"] ), "[i]t is well settled that extrinsic evidence may not be used to impeach the credibility of a witness on collateral matters" ( Parsons v. 218 E. Main St. Corp., 1 AD3d 420 [2003] ).
Accordingly, the defendant's motion for judicial subpoena duces tecum ordering the NYPD and CCRB to disclose the personnel records of Police Officer Otniel Figueroa is DENIED.
The branch of the motion reserving the right to make further motions is denied subject to the extent permitted by CPL 255.20.
This constitutes the Decision and Order of the Court.