District Court of Suffolk County, First District, March 22, 2023

Cory H. Morris, Melville, for defendant.

Raymond A. Tierney, District Attorney, Central Islip (Raymond Buitenkant of counsel), for the People.

It is ordered that this omnibus motion by the defendant is decided as follows: the defendant's motion to strike the CoC/SoR (certificate of compliance/statement of readiness) is denied. The defendant's motion to dismiss the accusatory instrument based upon an alleged violation of his statutory speedy trial rights is denied. The defendant's motion to dismiss the accusatory instruments for the People's failure to provide discovery is denied. The defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is denied. The defendant's motion to file additional motions is granted, to the extent indicated herein.

On May 23, 2022, the defendant was charged under docket No. CR-015730-22SU with one count of driving while intoxicated in violation of New York State Vehicle and Traffic Law § 1192 (3), an unclassified misdemeanor, and one count of driving while intoxicated per se in violation of Vehicle and Traffic Law § 1192 (2), an unclassified misdemeanor. He was arraigned on June 20, 2022.

By motion dated January 26, 2023, the defendant now moves this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instruments for the People's failure to provide discovery; (4) granting an adverse inference instruction based upon the People's failure to comply with discovery demands; and (5) allowing him to file additional motions.

This court addresses each motion, in turn, below.{**78 Misc 3d at 977}

1. Motion to Dismiss

On September 6, 2022, the defendant filed an omnibus motion to dismiss for failure to comply with the discovery requirements of Criminal Procedure Law article 245, which the People opposed on October 7, 2022. In an order dated November 18, 2022, the court denied the defendant's motion to dismiss and granted the defendant's request for Mapp/Dunaway and Huntley hearings. (See People v Sherman, Suffolk Dist Ct, 1st Dist, Nov. 18, 2022, Orlando, J., CR-015730-22SU.)

2. Hearing

On January 24, 2023, this court held a combined Mapp/Dunaway and Huntley hearing, which hearing continued on January 25 and January 26, 2023. During the hearing, the defendant made an oral motion to dismiss pursuant to CPL 30.30 (5), on the ground that he had not received all of the impeachment material to which he was entitled. In addition, the People made an oral motion in limine to preclude cross-examination regarding disciplinary files.

3. Decision

In an oral decision on preliminary motions read on the record on January 24, 2023, this court denied the defendant's motion to dismiss based on speedy trial grounds, noting that, in this [*2]case, the People had turned over impeachment materials containing all categories of findings (substantiated, unsubstantiated, unfounded, and exonerated). (See Jan. 24, 2023 tr at 116-121.) This court further held that the People's disclosures were sufficient, and the People did not have to disclose the entirety of the underlying files in the first instance. (Id. at 119-120.) If the defendant believed he needed the underlying files, he could make a motion for such upon a showing of necessity. (Id.) In addition, the court held that the People had demonstrated good faith to the extent they had disclosed materials in accordance with their understanding of existing—and conflicting—case law in People v Portillo (73 Misc 3d 216 [Sup Ct, Suffolk County, July 23, 2021]) and People v Randolph (69 Misc 3d 770, 773 [Sup Ct, Suffolk County, Sept. 15, 2020]). (Id. at 116.)

In addition, this court held that the redaction of personally-identifying information, such as tax identification numbers and Social Security numbers, from the IAB (Internal Affairs Bureau) files was permissible. (See Jan. 24, 2023 tr at 119.) However, the redaction of other information would require the People to apply for a protective order. (Id.){**78 Misc 3d at 978}

Finally, this court reserved decision on the People's motion in limine, until such time as an officer testifies during a hearing, "in which case the defense attorney can then determine from the materials that he has, what, if any, of those summaries he believes would be necessary for the cross examination and then why the underlying files, which are not turned over, are necessary." (See Jan. 24, 2023 tr at 119-120.)

The defendant filed a written omnibus motion on January 26, 2023, which motion is pending.

As noted above, the defendant now moves this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights; (3) dismissing the accusatory instruments for the People's failure to provide discovery; (4) granting an adverse inference instruction based upon the People's failure to comply with discovery demands; and (5) allowing him to file additional motions.

The parties' arguments are addressed in turn, below.

1. Motion to Strike the CoC/SoR

The defendant first moves to strike the People's CoC/SoR, filed on July 5, 2022, as invalid because the People failed to comply with their automatic discovery obligations pursuant to CPL 245.20 (1) inasmuch as they failed to disclose (a) all impeachment materials, including the underlying IAB files (rather than mere summaries) (see defendant's aff ¶ 11; reply ¶ 7); (b) unredacted copies of relevant records (contained in exhibit C) (see defendant's aff ¶¶ 6, 11; reply ¶ 7); and (c) radio run records (see defendant's aff ¶ 12).^[FN1]

In their opposition, the People contend that (1) the defendant is not entitled to unredacted copies of the documents, and the People were never ordered to turn over unredacted copies and (2) the People previously disclosed so-called "radio run" records (referred to as "communications" in the People's disclosures). (See People's mem of law in opp, Feb. 15, 2023, at Point I.){**78 Misc 3d at 979}

(a) Scope of the Disclosure of IAB Files

CPL 245.20 (1) provides that the automatic discovery requirement applies to "all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control." The statute contains a nonexclusive list of "items and information" to be disclosed automatically (see CPL 245.20 [1] [a]-[u]). This list includes "[a]ll evidence and information . . . that tends to . . . impeach the credibility of a testifying prosecution witness." (CPL 245.20 [1] [k] [iv] [emphasis added].)

The defendant contends that CPL 245.20 (1) (k) (iv) must be interpreted to require "all evidence" to be disclosed, namely: (1) impeachment materials containing all categories of findings ("substantiated," "unsubstantiated," "unfounded," and "exonerated") and (2) the entire underlying IAB files, not merely summaries.

Although there is no appellate-level decision in the Second Department addressing the interpretation of CPL 245.20 (1) (k) (iv), two thoughtful trial courts in this district have addressed similar arguments. In People v Randolph (69 Misc 3d 770, 773 [Sup Ct, Suffolk County, Sept. 15, 2020, Mark Cohen, J.]), the court held that IAB files must be turned over only where the finding was "substantiated" or "unsubstantiated." (Randolph, 69 Misc 3d at 772.) The court in that case reasoned that such records could be deemed to "tend to impeach," due to the existence of sufficient evidence, but where the finding was "exonerated" or "unfounded," such records lacked evidentiary reliability and could not be deemed to "tend to impeach." (Id.) The court reasoned as follows:

"[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 [*3]that tends to or has an inclination to impeach a police witness. Consequently, IAB files involving allegations{**78 Misc 3d at 980} that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery." (Randolph, 69 Misc 3d at 772 [citations omitted].)

By contrast, in People v Portillo (73 Misc 3d 216 [Sup Ct, Suffolk County, July 23, 2021, Chris Ann Kelley, J.]) the court held that all categories of impeachment material must be turned over, regardless of whether the police department found the allegations to be "substantiated," "unsubstantiated," "unfounded," or "exonerated." In so holding, the court reasoned that "[i]t is the nature of the allegation itself which establishes a good faith basis to impeach, and the credibility assessment of an IAB official [an official of the Suffolk County Police Department's Internal Affairs Bureau] may not impact whether the information should be turned over." (Id. at 228.) In addition, the court held that

"[a]s to whether the People must provide every single piece of paper in the underlying file of all such misconduct investigations, or merely provide the summary investigative report, the statute requires 'all evidence and information,' and therefore the entire underlying file must be turned over, not only the shortened summary investigative reports." (Id. at 246.)

Since those cases were decided, courts addressing the question of the scope of disclosure under CPL 245.20 (1) (k) (iv) have reached different conclusions. (Compare People v Montgomery, 74 Misc 3d 551 [Sup Ct, NY County 2022] [IAB files must be turned over only where the finding was "substantiated" or "unsubstantiated"; files where the finding was "exonerated" and "unfounded" do not tend to impeach], and People v Lewis, 78 Misc 3d 877 [Sup Ct, Kings County 2023] [People only obligated to disclose impeachment material that "relate(s) to the subject matter of the case"], with People v Taveras, 77 Misc 3d 1231[A], 2023 NY Slip Op 50074[U] [Crim Ct, Bronx County 2023] [requiring disclosure of records containing all categories of findings], and People v Pennant, 73 Misc 3d 753, 760 [Nassau Dist Ct, 1st Dist 2021] [requiring disclosure of records containing all categories of findings; holding that "the People's discovery obligation pursuant to CPL 245.20 (1) (k) includes 'any record created in furtherance of a law enforcement disciplinary proceeding' "]; compare People v Toussaint, 78 Misc 3d 504 [Crim Ct, Queens County 2023] [summaries of disciplinary records insufficient to satisfy statutory disclosure{**78 Misc 3d at 981} obligation], with People v Davis, 70 Misc 3d 467, 476 [Crim Ct, Bronx County 2020] [disclosure of information contained in NYPD's Central Personnel Index, which included charges filed against officer and results of investigation, sufficient to satisfy statutory disclosure requirements], and People v Knight, 69 Misc 3d 546 [Sup Ct, Kings County 2020] [prosecution satisfied its discovery obligations regarding potential police witnesses by providing disclosure letters rather than underlying records].)

It is the opinion of this court that the two prior cases in this district addressing the contours of CPL 245.20 (1) (k) (iv), Randolph and Portillo, are not binding on this court, and in [*4]the absence of appellate-level guidance,^[FN2] this court now considers the questions anew.

i. Obligation to Disclose All Categories of Impeachment Materials

With respect to the categories of impeachment materials the People are required to disclose, this court concludes that CPL 245.20 (1) (k) (iv) requires the People to disclose impeachment materials containing all categories of findings (i.e., "substantiated," "unsubstantiated," "unfounded," and "exonerated"). The police department's internal disposition is not dispositive of whether the alleged conduct may impact credibility. This court agrees with several courts addressing the question that "there is no direct relationship between the [internal] IAB finding and the extent to which the allegation itself 'tends to impeach.' " (People v Portillo, 73 Misc 3d at 225.) Therefore, "it is unreasonable to limit disclosure only to misconduct findings that are found to be 'substantiated' and 'unsubstantiated.' " (Id.; accord People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U], *5 [Nassau Dist Ct, 1st Dist 2021] [declining to limit disclosure obligation to "substantiated" and "unsubstantiated" claims of misconduct; holding "(t)he definition of 'law enforcement {**78 Misc 3d at 982}disciplinary records' is expansive and inclusive. It does not distinguish between unfounded, exonerated, substantiated or unsubstantiated"].)

In this case, the People have disclosed impeachment materials containing all categories of findings (substantiated, unsubstantiated, unfounded, and exonerated). Thus, the People have complied with the statutory requirement.

ii. Obligation to Disclose the Entire Underlying IAB Files

With respect to the question whether the defendant is entitled to the underlying IAB files, or whether an excerpt, list or summary of the IAB files would be sufficient, it is the opinion of this court that the entire underlying files need not be produced to satisfy the requirements of CPL article 245. Rather, the plain language of the discovery statute only requires the People to disclose "evidence and information" that may tend to impeach, but it does not state the form in which such evidence and information must be disclosed. (CPL 245.20 [1] [k] [iv].) It is the opinion of this court that so long as the People disclose sufficiently detailed information such [*5]that defendants can understand the nature and degree of the alleged misconduct and determine its relevance to a particular defense, the information disclosed complies with the statutory requirement.

Two out-of-district appellate decisions have addressed disclosure of summaries of impeachment evidence under the statute. Both have held that the statute requires disclosure of records underlying the alleged misconduct and not merely a list or summary of the misconduct. (See Matter of Jayson C., 200 AD3d 447, 449 [1st Dept 2021] [respondent in a juvenile delinquency proceeding appealed the trial court's denial of a motion directing the county agency to produce all impeachment materials in connection with a trial on criminal offenses; the appellate court held that the county agency's provision of letters summarizing the officers' disciplinary histories was insufficient to satisfy CPL 245.20 (1) (k) (iv), noting that "(a) similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant"]; People v Rodriguez, 77 Misc 3d 23, 25 [App Term, 1st Dept 2022] ["(t)he People failed to provide relevant records to defendant, including underlying impeachment materials pursuant to CPL 245.20 (1) (k)"].)

It is the opinion of this court that those two appellate decisions are not controlling in this case. The Jayson C. decision{**78 Misc 3d at 983} holds that a juvenile defendant in a family court is entitled to the same constitutional protections as an adult defendant in a criminal proceeding. The Court correctly notes that to the extent an adult defendant would be entitled to the underlying files, then a juvenile would be as well, in order to be afforded equal protection of the law. However, the decision rests on the premise that "[a] similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant," when there is, in fact, no established case law in the First Department (or elsewhere) so holding with respect to adult defendants in criminal proceedings. Notably, the Court cites no case holding that a similarly-situated defendant in a criminal proceeding would be entitled to underlying files, and not mere summaries. This court does not read the Jayson C. decision, an appeal from a family court order, to purport to decide the issue with respect to adult criminal defendants in the first instance; rather, in that case, the court assumes, without deciding, that such a right exists and applies that right to the juvenile respondent. To the extent that the court in Rodriguez cites to Jayson C. for authority establishing a right to the underlying files in criminal proceedings, that authority too is unpersuasive. Finally, while several trial-level courts in the Second Department have followed these two appellate-level decisions, they were decided in the First Department, not the Second; consequently, they are nonbinding.

In this case, based on its independent review of the files in question, this court concludes that the People disclosed detailed case reports which contain, in each instance, an exhaustive, multipage recitation of the factual allegations and findings, not mere summaries. Moreover, the reports contain indicia of reliability insofar as they were prepared contemporaneously with the misconduct complaints (in some cases more than 15 years ago), and were prepared for the purpose of internal discussion and analysis of the complaints. Indeed, the preparation of the reports was wholly unconnected with the pending prosecution; thus, they are not mere truncated lists or summaries prepared with an eye toward use in this particular case. This court concludes that such reports provide sufficient detail to allow the defendant's counsel to question the officer during cross-examination about the fact of the complaint, the allegations, and the findings. Here, [*6]the People's disclosure of detailed case reports containing an exhaustive description of the allegations{**78 Misc 3d at 984} and findings in detail satisfies the requirements of CPL 245.20 (1) (k) (iv).

Accordingly, this court concludes that the statute only requires the People to disclose sufficiently detailed information so that defendants can "understand the specific nature and degree of the misconduct, determine its relevance to a particular defense, and prepare arguments as to its use on cross-examination at hearing and trial." (People v Castellanos, 72 Misc 3d 371, 375 [Sup Ct, Bronx County 2021] [rejecting summaries of IAB files as insufficiently detailed; "(s)ummaries, certainly the ones at issue here, lack any significant substance or detail about the nature or extent of the misconduct"].) Here, that standard has been met.

As this court held on January 24, 2023, the defendant may make an application for the underlying IAB files, which application may be granted where the defendant has an articulable, particularized basis for obtaining such files and demonstrates that the detailed case report with respect to the incident at issue is insufficient. Such applications are to be considered on an incident-by-incident and case-by-case basis. Where the defendant makes such an application, the procedure would be similar to a Sandoval hearing (or in this case, a Sherman hearing), in which the court would determine the extent to which, if any, an officer, when testifying, would be subject to impeachment by cross-examination about prior disciplinary history. In light of the robustness of the detailed case reports provided by the People in this case, this court can envision very limited, if any, circumstances that meet the evidentiary requirements, i.e., in which the underlying files contain additional information (other than the fact of allegations and the finding) admissible for impeachment purposes. A contrary rule would require the People to produce voluminous records and require a trial-within-a-trial with respect to collateral events.

Here, the People's disclosure of detailed case reports that describe the allegations and findings in detail satisfies the requirements of CPL 245.20 (1) (k) (iv). Moreover, the defendant has made no particularized showing as to why the detailed case reports are insufficient, and why additional information contained in the underlying files, if any, would be relevant.

Accordingly, this court concludes that the People's disclosure of detailed case reports of impeachment materials containing all categories of findings (substantiated, unsubstantiated, unfounded, and exonerated) satisfied their statutory disclosure obligations.{**78 Misc 3d at 985}

iii. Disclosure of Redacted Copies of the IAB Files

Next, the defendant contends that the People failed to disclose unredacted copies of the IAB files. (See defendant's aff ¶¶ 6, 11.)

As noted above, this court held in its January 24, 2023 order that the redaction of personally-identifying information, such as tax identification numbers and Social Security numbers, from the IAB files was permissible. (See Jan. 24, 2023 tr at 119; see also CPL 245.20 [6].) However, the redaction of other information would require the People to apply for a protective order. (Jan. 24, 2023 tr at 119; see People v Winston, 78 Misc 3d 1201[A], 2023 NY Slip Op 50130[U] [Crim Ct, Bronx County 2023] [redaction of witness contact information in law enforcement disciplinary files improper]; People v Best, 76 Misc 3d 1210[A], 2022 NY Slip Op 50859[U] [Crim Ct, Queens County 2022] [redaction of witness information in police disciplinary files without a [*7]protective order improper]; People v Williams, 72 Misc 3d 1214[A], 2021 NY Slip Op 50743[U] [Crim Ct, NY County 2021] [directing People to disclose disciplinary records for testifying officer, holding that the People may redact the officer's Social Security number and tax identification number, but permission for additional redactions must be sought by court order]; People v Herrera, 71 Misc 3d 1205[A], 2021 NY Slip Op 50280[U] [Nassau Dist Ct, 1st Dist 2021] [same], citing Public Officers Law § 89 [2-b], [2-c].)

Based upon this court's independent review of the files disclosed by the People in this case, it appears that information other than personally-identifying information was redacted, such as the address and contact information for the complainants and witnesses. The People have not applied for a protective order with respect to those redactions.

Accordingly, the People are ordered either to disclose unredacted versions of the previously-redacted files (except for personally-identifying information), or to move for a protective order within 15 days of this order.

(b) Request for Radio Run Records

Finally, the defendant objects that he did not receive copies of the "radio run" records in discovery. (See defendant's aff ¶ 12.)

Based on the People's representation that they did, in fact, disclose such records under the file name "communications," this court concludes that the People have satisfied their disclosure obligations under CPL article 245.{**78 Misc 3d at 986}

2. Motion to Dismiss Based on Statutory Speedy Trial Grounds

To the extent the defendant contends that the People have exceeded their statutory speedy trial time pursuant to CPL 30.30, such motion is denied.

Pursuant to CPL 30.30 (1) (b), with respect to the misdemeanor charge, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all statutorily-excludable time periods. The within criminal action was commenced on June 20, 2022. The People filed their initial CoC/SoR 15 days later, on July 5, 2022.

To the extent the defendant's motion to dismiss on speedy trial grounds is predicated upon the argument that the People's CoC/SoR is invalid for failure to comply with disclosure requirements, this court has rejected that argument for the reasons discussed above.

Accordingly, the defendant's motion to dismiss based upon a statutory speedy trial violation is denied.

3. Motion to Dismiss for Failure to Provide Discovery

The defendant has also moved to dismiss the accusatory instruments for the People's failure to provide discovery. (Defendant's notice of mot ¶ 4.) As discussed above, the People's disclosure of detailed case reports pertaining to all categories of findings satisfies their statutory disclosure obligations under CPL article 245. Moreover, the People have provided the radio run [*8]records.

Thus, the defendant's motion to dismiss the accusatory instruments for the People's failure to provide discovery is denied.

4. Motion for Adverse Inference Jury Instruction

The defendant has also moved for an adverse inference instruction on each element of the particular crime charged to the defendant based upon the People's failure to comply with discovery demands. (Defendant's notice of mot ¶ 5.)

The defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is denied, as this court has determined that the People are in compliance with their statutory obligations pursuant to CPL article 245.

5. Motion to File Additional Motions

The defendant's request to file additional motions is granted, but only to the extent permitted by CPL 255.20 (3). (Defendant's notice of mot ¶ 3.){**78 Misc 3d at 987}

By reason of the foregoing, the defendant's motion to strike the CoC/SoR is denied. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory and constitutional speedy trial rights is denied. The defendant's motion to dismiss the accusatory instruments for the People's failure to provide discovery is denied. The defendant's motion for an adverse inference instruction based upon the People's failure to comply with discovery demands is denied. The defendant's motion to file additional motions is granted, to the extent indicated herein.

The People are ordered either to disclose unredacted versions of the previously-redacted files (except for personally-identifying information), or to move for a protective order within 15 days of this order.