Opinion
No. 2016-0404
05-08-2017
The PEOPLE of the State of New York, Plaintiff, v. Silvon S. SIMMONS, Defendant.
Sandra Doorley, Esq., Monroe County District Attorney by Julie Hahn, Esq., Kevin Fitzgerald, Esq., Assistant District Attorneys, Rochester, for the People. Brian Curran, Esq., City of Rochester Corporation Counsel by John M. Campolieto, Esq., Assistant Municipal Attorney, Rochester, for the City of Rochester. Timothy P. Donaher, Esq., Monroe County Public Defender by Elizabeth Riley, Esq., Katie Higgins, Esq., Assistant Public Defenders, Rochester, for the Defendant.
Sandra Doorley, Esq., Monroe County District Attorney by Julie Hahn, Esq., Kevin Fitzgerald, Esq., Assistant District Attorneys, Rochester, for the People.
Brian Curran, Esq., City of Rochester Corporation Counsel by John M. Campolieto, Esq., Assistant Municipal Attorney, Rochester, for the City of Rochester.
Timothy P. Donaher, Esq., Monroe County Public Defender by Elizabeth Riley, Esq., Katie Higgins, Esq., Assistant Public Defenders, Rochester, for the Defendant.
SAM L. VALLERIANI, J.
Defendant filed a motion seeking an in camera review of Officer Ferrigno's personnel file. The City of Rochester (City) filed opposition papers. The Court conducted oral argument on the matter at which the defendant and the City amplified their positions. Based on the Court's review of counsels' respective submissions and their oral arguments, the Court signed a subpoena duces tecum ordering that the entirety of the contents of Officer Ferrigno's personnel file be provided to the Court for an in camera review pursuant to People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979) (see Civil Rights Law § 50–a ). The defendant and the People have since provided supplemental submissions and made additional oral arguments, which the Court has also considered in rendering this decision.
The People were without standing to assert their opposition.
Rosario
As a threshold matter, the defendant contends that Officer Ferrigno's Professional Standards Section (PSS) testimony as well as any other written or recorded information obtained pursuant to the PSS investigation underlying the instant criminal case is discoverable pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). While the Court does not agree with defendant's contention that such information is within the custody and control of the prosecutor simply because it is in the custody and control of the Rochester Police Department (RPD), inasmuch as Officer Ferrigno's testimony before PSS bore directly on the subject matter of the underlying criminal charges and the officer is anticipated to testify at trial, the Court finds that Officer Ferrigno's PSS testimony as well as any other written or recorded information obtained from the officer pursuant to the PSS investigation underlying the instant criminal case is the functional equivalent of Rosario material and, as such, should be provided to the defendant. Likewise, based on the same reasoning, the Court further finds that Officer Giancursio's PSS testimony should be provided to the defendant.
The Lawsuits
The defendant also wishes to cross-examine Officer Ferrigno regarding three lawsuits that were filed against him in Federal Court in his capacity as an RPD Officer—Turner v. The City of Rochester, et al.; Warr v. The City of Rochester, et al.; Williams v. The City of Rochester, et al. The law regarding whether defendant may cross-examine Officer Ferrigno regarding the lawsuits is set forth in People v. Smith, 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 (2016). In Smith, the Court of Appeals held that "defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness" ( id. at 662, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). The analysis is based on a three-part test: "First, counsel must present a good faith basis for inquiring, namely the lawsuit relied upon; second, specific allegations ... relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties" (id. [citations omitted] ).
In each of the above lawsuits, Officer Ferrigno was sued individually and in his capacity as an RPD officer. The other individuals named in the lawsuits have been omitted in the Court's reference herein because they are not relevant to the question before the Court.
The evolution of the case law in this area seems to require trial courts to find a tenable nexus between the specific allegations in the lawsuit or alleged misconduct and the officer's conduct in the underlying criminal allegations in determining relevancy for cross-examination. For example, in Smith, supra, the Court of Appeals, as part of its decision, reversed the Appellate Division, First Department's decision in People v. Ingram, 125 A.D.3d 558, 5 N.Y.S.3d 376 (1st Dept.2015), revd. 27 N.Y.3d 652, 36 N.Y.S.3d 861, 57 N.E.3d 53 (2016), which was decided together with Smith. In Ingram, the First Department affirmed the trial court's ruling precluding defendant from cross-examining two particular police witnesses—Officers Sanchez and Deevy—in the underlying criminal case regarding a federal lawsuit pending against their narcotics field team alleging excessive force, false arrest, and that they fabricated evidence (see Smith, 27 N.Y.3d at 666, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). The theory of defense in Ingram was that Officer Deevy, who fired his weapon at defendant Ingram while pursuing him on foot, was part of a group of "rogue cops," to include Officer Sanchez, who fabricated a story that the defendant fired first in order to protect Officer Deevy (see id. ). The Court of Appeals held that it was error to preclude defense counsel from cross-examining the officers regarding the specific allegations of the pending lawsuit for impeachment purposes ( id. at 667, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). In People v. Puglisi, 44 N.Y.2d 748, 749, 405 N.Y.S.2d 680, 376 N.E.2d 1325 (1978), a narcotics case, the Court of Appeals held that it was error to refuse disclosure to defense counsel for impeachment an officer's disciplinary file where "defense counsel had information that [the] undercover officer who testified had improperly handled previous ‘buys' " ( People v. Gissendanner, 48 N.Y.2d 543, 549, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ). Similarly, in People v. Garrett, 23 N.Y.3d 878, 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 (2014), the Court of Appeals held that civil allegations in a federal lawsuit "were favorable to defendant as impeachment evidence" where the allegations "favored defendant's false confession theory" (see id. at 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 ; Smith at 661, 36 N.Y.S.3d 861, 57 N.E.3d 53, quoting id. ). Moreover, in People v. Enoe, 144 A.D.3d 1052, 42 N.Y.S.3d 48 (2nd Dept.2016), the Second Department, citing Smith, supra, reversed the trial court for precluding defendant from cross-examining the officer on the underlying allegations of a federal lawsuit which alleged that the officer previously "falsely arrested an individual on a[gun] possession charge for the purpose of securing overtime compensation and a ‘credit’ for a gun-related arrest" where the criminal case included the officer's testimony that the defendant possessed a gun ( id. at 1054, 42 N.Y.S.3d 48 ). While Smith, Garrett , and Enoe are lawsuit cases, and Gissendanner and Puglisi deal with disclosure of confidential police personnel or disciplinary files, these and related cases all share the common thread of rationalizing the propriety of disclosure of otherwise confidential information protected by Civil Rights Law § 50–a, where allegations of misconduct against a police officer, whether or not resulting in a lawsuit, engender departmental discipline documented in the officer's personnel file. In balancing a defendant's constitutional right to confrontation against the government's competing interest in maintaining confidential information regarding the performance and discipline of police officers, the precedents coalesce in teaching that the police misconduct subject to disclosure must "bear peculiar relevance to the circumstances of the defendant's case" (see Gissendanner, 48 N.Y.2d at 549, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; see generally Puglisi, 44 N.Y.2d 748, 405 N.Y.S.2d 680, 376 N.E.2d 1325 ) or provide the officer a motive to falsify (see Gissendanner at 549, 423 N.Y.S.2d 893, 399 N.E.2d 924, citing Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 [1974] ).
"[T]here is no prohibition against cross-examining a witness about bad acts that have never been formally proven at trial" ( Smith, 27 N.Y.3d at 661, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). Specifically, with respect to police witnesses, the Court of Appeals has emphasized that "law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination" ( id. at 661–662, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). "[A] police witness's prior bad act that ... has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination" ( id. at 661, 36 N.Y.S.3d 861, 57 N.E.3d 53 [italics added] ). Cross-examination regarding civil allegations against a police officer "favorable" to the defendant is permissible (id., citing Garrett, 23 N.Y.3d at 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 ; see generally Puglisi, 44 N.Y.2d 748, 405 N.Y.S.2d 680, 376 N.E.2d 1325 ). "Evidence is ‘favorable’ to the accused if it tends to show that the accused is not guilty or if it impeaches a government witness" ( Garrett, 23 N.Y.3d at 886, 994 N.Y.S.2d 22, 18 N.E.3d 722 [emphasis added; internal quotation marks not in original] ). "[T]he ‘favorable tendency’ of impeachment evidence should be assessed without regard to the weight of the evidence as a whole" (id. [citations omitted] ). "In other words, impeachment evidence may be considered favorable to defendant even if it is not material to the defendant's case" (id. ).
Mindful of the above legal framework, the defendant may cross-examine the officer about the specific allegations relative to excessive or improper force underlying each of the above lawsuits for impeachment purposes. The defense theory here, strikingly similar to the defense theory advanced by defendant Ingram (see Smith, 27 N.Y.3d at 666–667, 36 N.Y.S.3d 861, 57 N.E.3d 53 ), is that Officer Ferrigno used excessive and illegal force against the defendant by firing his weapon at him for no good reason, and that the officer, in turn, fabricated the fact that the defendant shot at him first in order to justify his actions and shield himself from wrongdoing. Likewise here, as in Ingram (see Smith, supra ), the defendant's guilt may hinge heavily, if not entirely, on Officer Ferrigno's anticipated trial testimony that will presumably purport to establish that the defendant fired a shot from a gun at him—a gun that neither Officer Ferrigno nor any other witness ever actually observed in defendant's possession, and which was found on the ground near defendant's right foot, and not connected to him by any forensic evidence (see Smith at 668, 36 N.Y.S.3d 861, 57 N.E.3d 53 ). Under these circumstances, given defendant's good faith basis to ask about the prior bad acts in the above lawsuits, the Court fails to descry any identifiable prejudice to the parties or other reason to believe that the main issues at trial will be obscured or the jury confused as a result of the desired inquiry (see id. ). Officer Ferrigno's Personnel File
Section 50–a of the Civil Rights Law, which governs the production of police personnel records, "provides that, on a clear showing of facts sufficient to warrant the judge to request records for review, an in camera inspection is to be conducted and, if the court then determines that the records contain matter that is relevant and material in the action, such portions may be disclosed to the person who made the request" ( Gissendanner at 551, 423 N.Y.S.2d 893, 399 N.E.2d 924 [citation and internal quotation marks omitted]; see Civil Rights Law § 50–a[2], [3] ).
Here, the Court, having completed its in camera review, will disclose to defendant the SRR and PSS transcript relative to the "sustained" finding of misconduct that Officer Ferrigno engaged in improper procedure for failing to call a supervisor as requested by civilian complainant Darnell Williams during a service call. Darnell Williams is the same complainant in Williams v. The City of Rochester, et al., discussed above. Williams, in addition to filing the above lawsuit, filed a civilian complaint with the PSS against Officer Ferrigno. The complaint alleged that the officer used excessive force during his arrest, engaged in discourteous behavior, and failed to notify his supervisor at Williams' request. The PSS, upon conducting its investigation, ultimately concluded that the allegations of "excessive force" and "discourteous behavior" were "unprovable."
Robinn Turner (plaintiff in Turner v. The City of Rochester, et al. ) and Benny Warr (plaintiff in Warr v. The City of Rochester, et al. ) also both filed respective civilian complaints against Officer Ferrigno in addition to their lawsuits. Turner's PSS complaint alleged that Officer Ferrigno "failed to take police action." Turner's PSS complaint was deemed "unprovable" on December 6, 2010. The officer's personnel file contained no substantive information regarding Turner's PSS complaint. Upon information and belief, the source of which is an electronic mail communication from a municipal attorney for the City, the entire PSS file regarding Turner's complaint has been purged from the officer's personnel file pursuant to the City's policy that PSS files resulting in findings of "exonerated" or "unprovable" are purged five years from the date the investigation is completed. Inasmuch as Turner, mindful of the contents of her federal court complaint, may also have filed an "excessive force" complaint against Officer Ferrigno with PSS, such is not reflected in the officer's personnel file. In any event, to the extent that any such complaint was filed, the allegations were presumably deemed "unprovable" or the officer was "exonerated" based on the purging of Turner's PSS file.
Warr's PSS complaint against Officer Ferrigno alleged "unlawful arrest," "excessive force," and "discourteous behavior." The PSS investigation resulted in a finding of "unprovable" as to "unlawful arrest"; "exonerated" as to "excessive force"; and "unprovable" as to "discourteous behavior." Given the designated findings, although the officer's PSS file still contains the documentation regarding this investigation, the Court finds disclosure of said documentation unwarranted. However, the Court will disclose Officer Ferrigno's PSS transcript for impeachment purposes for the reasons previously mentioned in this opinion.
The Court finds that the remaining portions of the officer's personnel file do not merit disclosure. The file contains no sustained allegations whatsoever as to excessive or improper force. Moreover, the sustained allegations of misconduct in the file do not, in this Court's estimation, "bear peculiar relevance to the circumstances of the defendant's case" (see Gissendanner, 48 N.Y.2d at 549, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; see generally Puglisi, 44 N.Y.2d 748, 405 N.Y.S.2d 680, 376 N.E.2d 1325 ) or otherwise provide the officer a motive to falsify (see 48 N.Y.2d at 549, 423 N.Y.S.2d 893, 399 N.E.2d 924, citing Davis v. Alaska, 415 U.S. at 316, 94 S.Ct. 1105 ] ). It is well settled that "the Constitution does [not] confer ‘a right in every case to impeach the general credibility of a witness through cross-examination about his past [misconduct] ...’ " (id. ). Nor is disclosure warranted under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) inasmuch as the Court rejects defendant's contention that confidential police personnel files are constructively in the custody and control of the prosecutor. Because the sustained allegations in the officer's file are unrelated to excessive or improper force and not specifically probative of truthfulness, disclosure of such allegations for cross-examination would be substantially more prejudicial than probative, or confusing or misleading to the jury (see generally People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] [nature and scope of cross-examination are left to the trial judge's discretion] ).
While the Court recognizes that whether allegations of misconduct are sustained or not sustained in the officer's personnel file is not discussed in Gissendanner, supra, and related precedents, much less at all dispositive of the analysis, the Court, having reviewed the officer's file, has thus considered its contents and conclusions in conjunction with the applicable law and totality of information provided by counsel as part of the Court's overall analysis and exercise of discretion in determining disclosure.
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For all the above reasons, the Court hereby authorizes release of the following documentation from Officer Ferrigno's personnel file:
• The transcript of Officer Ferrigno's PSS testimony regarding the instant case
• Officer Ferrigno's SRR regarding the instant case
• Officer Ferrigno's supporting deposition regarding the instant case
• The transcript of Officer Giancursio's PSS testimony regarding the instant case
• The transcript of Officer Ferrigno's PSS testimony regarding the PSS complaint filed by Benny Warr
• The transcript of Officer Ferrigno's PSS testimony regarding the PSS complaint filed by Darnell Williams
• Officer Ferrigno's SRR regarding the arrest of Darnell Williams in relation to Williams' PSS complaint against the officer
• The August 20, 2013 letter from the RPD to Officer Ferrigno regarding the final sustained finding of Improper Procedure for failing to notify a supervisor regarding the PSS complaint filed by Darnell Williams
It is hereby ORDERED that any and all documentation released pursuant to this decision shall not to be reproduced or disseminated to any party, other than the defendant and his counsel, defendant's counsels' supervising attorneys, and any investigator assigned to this matter from the Monroe County Public Defender's Office, as may be required to assist in the defense of this matter; counsel for the People, counsels' supervising attorneys, and any investigator assigned to this matter from the Monroe County District Attorney's Office, as may be required to assist in the prosecution of this matter; and it is further
ORDERED, that this decision and its contents shall not be shared, reproduced, or disseminated to any other party(s), other than those expressly indicated in the above ordering paragraph as may be necessary, until the jury in the anticipated trial of this matter is sworn, at which time the Court will proceed with the formal filing of this decision at the Monroe County Supreme and County Court Clerk's Office; and it is furtherORDERED, that the entirety of the documentation released pursuant to this decision shall be promptly returned to the Court at the conclusion of the anticipated trial of this matter where it shall be sealed and made available only upon request of the Appellate Division, Fourth Judicial Department, for any appellate review of this matter.