Opinion
2015KN053629
05-03-2016
The People of the State of New York, v. Jorge Rolon, Defendant.
Emily Farquharson, Esq. The Legal Aid Society 111 Livingston St. Brooklyn, NY ADA Joy Kieras Office of the Kings County District Attorney's Office 350 Jay Street Brooklyn, NY Jaclyn M. Keane, Esq. Office of Lawrence Byrne, Esq. Deputy Commissioner — Legal Matters New York City Police Dept. 1 Police Plaza New York, NY Lindsay Flook Assistant Deputy Executive Director of Investigations Civilian Complaint Review Board, City of NY 100 Church Street New York, NY
Emily Farquharson, Esq. The Legal Aid Society 111 Livingston St. Brooklyn, NY ADA Joy Kieras Office of the Kings County District Attorney's Office 350 Jay Street Brooklyn, NY Jaclyn M. Keane, Esq. Office of Lawrence Byrne, Esq. Deputy Commissioner — Legal Matters New York City Police Dept. 1 Police Plaza New York, NY Lindsay Flook Assistant Deputy Executive Director of Investigations Civilian Complaint Review Board, City of NY 100 Church Street New York, NY Carolyn Walker-Diallo, J.
On January 6, 2016, Defendant filed the instant motion pursuant to Civil Rights Law (CRL) §50-a and Criminal Procedure Law (CPL)§610.20(3) for an in camera inspection of personnel records, Internal Affairs Bureau (IAB) records and Civilian Complaint Review Board (CCRB) records of the following police officers of the New York City Police Department (NYPD): Police Officer Peter Rubin (Shield No. 5057), Police Officer Paul Palminteri (Shield # 18460), Police Officer Lynette Reyes (Shield # 26626), and Sergeant Rayna Madho. All officers are assigned to the 83rd Precinct.
Defendant contends that the aforementioned police officers have been the subject of lawsuits involving illegal strip searches; illegal searches of residences, property and persons; excessive force; false arrests; falsified police records; and falsely accused plaintiffs. As such, Defendant compels the Court to conduct an in camera review of the requested records.
The Civilian Complaint Review Board filed a cross-motion pursuant to CPL §§240.50 and 340.30 for a protective order to shield the police officers' confidential records from disclosure. The NYPD filed opposition papers to the Defendant's motion and maintains that Defense counsel has not put forth evidence of a clear showing of sufficient facts to warrant an in camera inspection of the police officers' personnel records.
On March 4, 2016 Defendant filed a reply in response to the cross-motion and opposition.
For the reasons set forth below, the Defendant's motion is denied without prejudice. Accordingly, the cross-motion seeking a protective order pursuant to CPL§§ 240.50 and 340.30 is deemed moot and is denied without prejudice.
Procedural History
The relevant portion of the procedural history as it pertains to the issue before this Court is as follows: On August 17, 2015, the Defendant was arraigned and charged with Criminal Possession of a Controlled Substance in the Third Degree (PL§ 220.16(1)) and Criminal Possession of a Controlled Substance in the Seventh Degree (PL§ 220.03). The case was adjourned to August 21, 2015 for Grand Jury Action. On August 21, 2015, the People served and filed a Supporting Deposition and moved to dismiss the felony charge of Criminal Possession of a Controlled Substance in the Third Degree. The sole charge against the Defendant is Criminal Possession of a Controlled Substance in the Seventh Degree, a Class A misdemeanor.
The accusatory instrument alleges the following: On or about August 16, 2015, deponent, Police Officer Peter Rubin was informed by Police Officer Paul Palminteri, that he observed the Defendant in possession of a quantity of heroin and the informant recovered one clear plastic bag containing fifteen glassine envelopes of heroin and an open Ziploc bag of heroin from the waistband of the Defendant's pants. Analysis
Civil Rights Law § 50-a(1) exempts from disclosure personnel records of police officers without the express written consent of the subject officer or court order. Prior to issuing an order for an in camera review of an officer's personnel records, the Court must give "interested parties the opportunity to be heard" and the inspection may be conducted only upon "a clear showing of facts sufficient to warrant the judge to request records for review." Civil Rights Law § 50-a(2); Telesford v Patterson, 27 AD3d 328, 330 (1st Dept 2006).
Here, Defendant contends that during the course of his arrest, he was unlawfully strip-searched, which resulted in the discovery of the controlled substance for which he now faces a criminal charge. The charge against Defendant rests solely on the testimony of the arresting officer and identification witness Police Officer Peter Rubin, informant and identification witness, Officer Paul Paliminteri, and identification witness Officer Lynette Reyes. See People's Notice CPL§ 710.30(1)(b). Sergeant Madho is alleged to have been the approving supervisor of the arrest report, complaint report, as well as the approving supervisor of certain property clerk invoices. The threshold issue is whether the individual police officers were given notice and "the opportunity to be heard" CRL§ 50-a(1). Here, the four police officers stand to be inequitably affected by any judgment rendered, and, as interested parties, must be named as respondents and given notice. Telesford v Patterson, 27 AD3d at 330; see CPLR § 1001 (a); CPLR § 1003.
Defense counsel asserts in her reply that "before filing with the Court on January 5, 2016, defense counsel gave opposing counsels, the NYPD and CCRB, notice via personal service that she was filing a motion pursuant to CPL§ 610.20(3) for a subpoena duces tecum regarding their police disciplinary records, and the named officers were also personally served with notice." See Defendant's Reply at 4. Contrary to defense counsel's assertion, the Court is not persuaded. There is no indication that the four individually named police officers were personally served with notice of the instant motion as required by CPLR §§1001(a); CPLR 1003. Notice to the attorney for the NYPD does not constitute notice to the police officers in their individual capacity. There is no unity of interest between them and, in fact, their interests may well be divergent. See Telesford v Patterson, 27 AD3d at 330. Since it does not appear to this Court that the police officers were given proper notice as provided by the CPLR, or were joined as parties to this proceeding, they could not have asserted or waived their rights prior to any in camera review of their records. CRL§ 50-a(1); see also People v James, 46 Misc 3d 1219(A) (Sup Ct, Kings County 2015). Nor could they have consented to the release of the confidential information. See id.
Assuming arguendo that the police officers were individually served with notice of the instant motion, the Defendant has not demonstrated "a clear showing of facts sufficient to warrant the judge to request records for review" that the subject records are material and relevant to the defense of the instant proceeding. CRL §50-a(2). Pursuant to CPL §240.20, a defendant is entitled to discovery, albeit, the defendant is not permitted to engage in a fishing expedition. See CPL §240.20; Brown v Grasso, 285 AD2d 642 (2d Dept. 2001); City of New York v Hodges, 285 AD2d 645 (2d Dept 2001). The Defendant must "put forth in good faith some factual predicate which would make it reasonably likely that the file will bear such fruit without being a desperate grasp at a straw." People v Gissendanner. 48 NY2d 543, 550 (1979).
In the instant proceeding, the four police officers have been the subject of lawsuits alleging, among other acts, illegal strip searches, and illegal searches of residences, property and persons. Defense counsel contends that the personnel records will "bear fruit" relating to the subject police officers' credibility and is essential to the defense of the instant proceeding, as their alleged prior acts make these police officers highly unreliable witnesses. Courts have held that personnel records cannot be obtained for the purposes of broad discovery to impeach witnesses' credibility and should not be disclosed upon mere conjecture. People v Coleman, 349 NYS 2d 298 (Nassau County Court1973); People v Frasier, 348 NYS 2d 529 (Nassau County Ct. 1973). Here, the Court finds that Defendant has not met its burden of demonstrating that the subject records are relevant and material to the defense of this case nor has Defendant set forth "some factual predicate" to warrant in camera inspection of the subject records.
Accordingly, the Defendant's motion seeking an in camera inspection of personnel records, Internal Affairs Bureau (IAB) records and Civilian Complaint Review Board (CCRB) records of the subject police officers is denied and the cross-motion filed by the CCRB seeking a protective order is deemed moot. This opinion constitutes the Decision and Order of the Court. Dated: May 3, 2016 Brooklyn, New York CAROLYN WALKER-DIALLO J.C.C.