But when a defendant shows a likelihood that the witness' prior criminal or disciplinary record may provide a motive to falsify, disclosure of this information has been held warranted (Davis v Alaska, supra; cf. People v Cwikla, 46 N.Y.2d 434). Also, when prior bad acts allegedly contained within disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant's case, detailed cross-examination and disclosure, usually after an in camera inspection, have been permitted (see People v Puglisi, 44 N.Y.2d 748 [narcotics case; defense counsel had information that undercover officer who testified had improperly handled previous "buys"]; People v Vasquez, 49 A.D.2d 590 [narcotics case; testifying police officer had been convicted for "shaking down" narcotics dealers]; Pitchess v Superior Ct., 11 Cal.3d 531; State v Pohl, 89 N.M. 523; State v Fleischman, 10 Or. App. 22 [all involving prosecutions for assault on police officers; defendants claimed officers were the aggressors and made a predicate showing that each had previously been accused of employing excessive force]; United States v Garrett, 542 F.2d 23, supra [held error to restrict cross-examination of undercover policeman about prior suspension for refusal to take urine test to determine whether he had used drugs]). Conversely, access has been denied in cases in which the defendant failed to demonstrate any theory of relevancy and materiality, but, instead, merely desired the opportunity for an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable him to impeach the witness (see People v Norman, 76 Misc.2d 644 [police person
N.Y.3d 88, 109–110, 783 N.Y.S.2d 485, 817 N.E.2d 341;People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286). Here, the allegedly suppressed evidence clearly fell within the ambit of the prosecutor's Brady obligation because it constituted impeachment evidence ( see People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286;see also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104). Moreover, the People's failure to disclose the existence of the civil action may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence ( see United States v. Gil, 297 F.3d 93, 104, citing United States v. Gleason, 265 F.Supp. 880, 886), for instance, providing a basis for the disclosure of police personnel records otherwise unavailable ( see People v. Gissendanner, 48 N.Y.2d 543, 549, 423 N.Y.S.2d 893, 399 N.E.2d 924;People v. Puglisi, 44 N.Y.2d 748, 750, 405 N.Y.S.2d 680, 376 N.E.2d 1325;People v. Vasquez, 49 A.D.2d 590, 370 N.Y.S.2d 144). “In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” ( People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286). “Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a ‘reasonable probability’ that it would have changed the outcome of the proceedings” ( id.).
Records may be confidential as against the public at large but an inspection must be allowed when the defendant's guilt or innocence may hinge on whether the jury believes the arresting officer is the aggressor. City of Tucson v. Superior Court, 25 Ariz. App. 512, 544 P.2d 1113 (1976); People v. Vasquez, 49 A.D.2d 590, 370 N.Y.S.2d 144 (1975), and State v. Fleishman, 10 Or. App. 22, 495 P.2d 277 (1972); see Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Curtis, 87 N.M. 128, 529 P.2d 1249 (1974); compare Cooper v. United States, 353 A.2d 696 (D.C.App. 1976). The state urges that the defendant's motion was based on conjecture.
--------Hence, it is not mere speculation or surmise that the officer's records may contain information bearing on unreliability of either the criminal charges or his testimony on which they depend (see People v. Vasquez, 49 A.D.2d 590, 591, 370 N.Y.S.2d 144 [2d Dept.1985] ) (trial court in a narcotics case should have reviewed in camera the personnel records of a police officer who was subsequently convicted of "shaking down" narcotics dealers). Therefore, viewing the threshold requirement in CRL 50–a(2) liberally, the Court finds that the defendant has demonstrated, in good faith, that the officer's personnel records "would make it reasonably likely that the file will bear [relevant and material information] and that the quest for its contents is not merely a desperate grasping at a straw" ( Gissendanner, 48 N.Y.2d at 550, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; compare People v. Harris, 121 A.D.2d 788, 504 N.Y.S.2d 552 [3d Dept.1986] ) (no factual support for defendant's contention that he reacted in self-defense when he struck prison guards knowing that guards had history of assaulting inmates without provocation).
John Meador v The City of New York, New York City Police Department, Police Commissioner Bill Bratton, Police Officer Brandon Gembecki, Police Officer Jose Santiago, Police Officer Adam Landesberg. -------- Hence, it is not mere speculation or surmise that the officer's records may contain information bearing on unreliability of either the criminal charges or his testimony on which they depend (see People v Vasquez, 49 AD2d 590, 591 [2d Dept 1985] (trial court in a narcotics case should have reviewed in camera the personnel records of a police officer who was subsequently convicted of "shaking down" narcotics dealers). Therefore, viewing the threshold requirement in CRL 50-a(2) liberally, the Court finds that the defendant has demonstrated, in good faith, that the officer's personnel records "would make it reasonably likely that the file will bear [relevant and material information] and that the quest for its contents is not merely a desperate grasping at a straw" (Gissendanner, 48 NY2d at 550; compare People v Harris (121 AD2d 788 [3d Dept 1986] (no factual support for defendant's contention that he reacted in self-defense when he struck prison guards knowing that guards had history of assaulting inmates without provocation).Therefore, the defendant's motion to subpoena records of the CCRB and NYPD is granted.
id]; People v Torres, 291 AD2d 273, lv denied 98 NY2d 681 [same as Patterson]; People v Lifrieri, 157 Misc 2d 598, 603, affd 230 AD2d 754, lv denied 89 NY2d 865 [police used confidential communication in violation of CPLR 4502 to obtain incriminating evidence against the defendant, but suppression was not warranted]). Thus, if a statutory violation would not result in the suppression of evidence, it follows that a violation of general orders in this case would not provide a defense to the charged crimes. However, the violation of police general orders may subject a police officer to possible impeachment, and the decisions in the area of the impeachment of police officers have so intimated (People v Gissendanner, 48 NY2d 543, 549 [a witness' disciplinary record may provide a motive to falsify]; People v Puglisi, 44 NY2d 748, 750 [information from detective's disciplinary files as to his previous mishandling of undercover "buys" should have been disclosed for impeachment purposes]; People v Vasquez, 49 AD2d 590, 591 [detective had been convicted in Federal District Court of shaking down narcotics dealers and detective's credibility was key issue at trial]; People v Oglesby, 177 Misc 2d 580, 588 [Civilian Complaint Review Board files might disclose prior assaults on suspects to coerce confessions]; People v Shakur, 169 Misc 2d 961, 974 [officer's misconduct in wrongfully brandishing a weapon as he drove by two civilians three years before defendant's trial did not have bearing on officer's credibility as the act was impulsive and remote]).
However, the violation of police general orders may subject a police officer to possible impeachment, and the decisions in the area of the impeachment of police officers have so intimated (People v. Gissendanner, 48 N.Y.2d 543, 549 — a witness' disciplinary record may provide a motive to falsify; People v. Puglisi, 44 N.Y.2d 748, 750 — information from detective's disciplinary files as to his previous mishandling of undercover "buys" should have been disclosed for impeachment purposes; People v. Vasquez, 49 A.D.2d 590, 591 — detective had been convicted in federal district court of shaking down narcotics dealers and detective's credibility was key issue at trial;People v. Oglesby, 177 Misc.2d 580, 588 — Civilian Complaint Review Board files might disclose prior assaults on suspects to coerce confessions; People v. Shakur, 169 Misc.2d 961, 974 — officer's misconduct in wrongfully brandishing a weapon as he drove by two civilians three years before defendant's trial did not have bearing on officers credibility as the act was impulsive and remote).
When prior bad acts contained in disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant's case, disclosure is required. (See, e.g., People v. Puglisi, 44 N.Y.2d 748, 750 [error for the court in a narcotics case to deny disclosure of information from the disciplinary records of the undercover officer concerning previous mishandling of undercover "buys"]; People v. Vasquez, 49 A.D.2d 590, 591 [trial court in a narcotics case should have reviewed in camera the personnel records of a police officer who was subsequently convicted of "shaking down" narcotics dealers].) But how is defense counsel in this case to learn that there existed evidence that had "peculiar relevance" since the prosecution gave no indication whatsoever of possessing relevant material?
The court thereby rejected the Sumpter court's reliance on the importance of proof as to credibility. However, in People v Vasquez ( 49 A.D.2d 590), the Appellate Division noted that, upon a clear showing of materiality, trial courts should allow discovery of police personnel records after an in camera inspection of such materials. The Legislature responded to the unclear pattern of the cases by the enactment of section 50-a Civ. Rights of the Civil Rights Law.
The court denied the application based on a lack of showing that production of these records would have any bearing on the merits of the charges themselves. In People v Vasquez ( 49 A.D.2d 590) the Appellate Division reversed a denial of an application for production of personnel records in a situation where the prosecution had introduced evidence on its direct case of medals and citations presented to the officers. Credibility was the key issue owing to peculiar circumstances consisting of a dead informer allegedly contacting an officer who was previously convicted for shaking down narcotics dealers.