Supreme Court, Suffolk County, July 23, 2021

Mayer Baron, PLLC, Hauppauge (Peter Mayer of counsel), for defendant.

Timothy D. Sini, District Attorney, Riverhead (John Scarglato of counsel), for plaintiff.

Issue Presented

At issue is the proper application of CPL 245.20 (1) (k) (iv) to the present case with regard to documents in possession of the Internal Affairs Bureau of the Suffolk County Police Department (IAB). The People and defense argue diametrically opposed interpretations of the statute, and the consequences thereof. The defense argues that the statute requires the People to provide every single piece of paper associated with matters Internal Affairs has determined to be substantiated and unsubstantiated. The People insist the statute requires them only to provide the defense with investigative summaries of matters Internal Affairs has determined to be substantiated and unsubstantiated. The position of both parties relies upon the built-in assumption that any matters found by Internal Affairs to be substantiated and unsubstantiated fall under CPL 245.20 (1) (k) (iv).

In the defendant's motion sparking the litigation of this issue, defendant interprets CPL article 245 as requiring full disclosure of all misconduct records prepared and maintained by the [*2]Suffolk County Police Department. In opposition, the People argue they should only be required to provide summary reports provided to them by the Suffolk County Police Department that they determine tend to impeach.

Both parties rely heavily upon People v Randolph, a case decided last year by the Honorable Mark Cohen, which addressed arguments similar to those presented by the instant motion. That case held that matters determined to be substantiated and unsubstantiated must be disclosed, concluding as follows: "The People must provide any available IAB files, in{**73 Misc 3d at 218} any form, involving any witness that they intend in good faith to call at a hearing and/or trial to the defendant involving substantiated or unsubstantiated allegations on or before September 22, 2020." (69 Misc 3d 770, 773 [Sup Ct, Suffolk County 2020] [emphasis added].)

The Randolph case explained its rationale as follows:

"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 that tends to or has an inclination to impeach a police witness. Consequently, IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery.

"As to information required to be produced in substantiated and unsubstantiated IAB files, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. The People thus may seek an in limine ruling to preclude any cross-examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness's credibility or there is no good faith basis for the inquiry." (69 Misc 3d at 772 [citations omitted].)

Thus, Randolph requires the People to provide to the defense all substantiated and unsubstantiated files, in any form, of any subject matter, as the existence of those investigations presents a potential good faith basis for cross-examination for the defense to employ, subject to an in limine application before the trial court.

The People's requirement to provide this favorable/Brady material in People v Randolph was specifically linked to Guide to New York Evidence rule 6.17, which describes "Impeachment by Instances of Misconduct." Under that rule of the Guide to New York Evidence, the defendant may impeach a witness "on cross-examination by asking the witness about prior specific criminal, vicious, or immoral conduct of the witness" (Guide to NY Evid rule 6.17 [1] [a], Impeachment by Instances of Misconduct, https://nycourts.gov/JUDGES/evidence/6-WITNESSES/6.17_IMPEACHMENT_BY_MISCONDUCT.pdf).{**73 Misc 3d at 219} The only limitations on such material under the Guide to New York Evidence are as follows:

"(i) the nature of the conduct or the circumstances in which it occurred bear logically and reasonably on the witness's credibility;

"(ii) the question has a good faith basis;

"(iii) the question does not relate to conduct underlying a criminal charge of which the witness was acquitted; and

"(iv) in a criminal case, the question about prior criminal, vicious, or immoral conduct of the defendant was authorized by the court prior to trial." (Guide to NY Evid rule 6.17 [1] [c].)

This court joins in the reasoning of People v Randolph as regards substantiated and unsubstantiated matters. They constitute favorable/Brady material and must be disclosed to permit the defense to properly investigate, assess, and prepare for trial. However, People v [*3]Randolph held that exonerated and unfounded cases need not be disclosed, as they lacked a good faith basis (and thus fail to satisfy element [ii] in Guide to New York Evidence rule 6.17 [1] [c]). This court departs from Randolph as regards investigations which have been determined by the Police Department to be unfounded or exonerated.

Upon review of the subject statute above, and in view of controlling constitutional and case law precedent, this court agrees with People v Randolph, in part, and departs in part. People v Randolph incorporates two assumptions: (1) only matters which the Police Department determines are "substantiated" and "unsubstantiated" "tend to impeach," and (2) the credibility determination by the Police Department is relevant to whether allegations which "tend to impeach" must be disclosed pursuant to CPL 245.20 (1) (k) (iv).

Assumption No. 1—Only matters which the Police Department determines are "substantiated" and "unsubstantiated" "tend to impeach."

People v Randolph explicitly states that any matter determined by the Police Department to be substantiated or unsubstantiated (regardless of subject matter) is discoverable under CPL 245.20 (1) (k) (iv), but that any matter determined by the Police Department to be unfounded or exonerated (regardless of subject matter) is not discoverable. (See People v Randolph, 69 Misc 3d 770, 772 [Sup Ct, Suffolk County 2020].) This court does not agree that the ultimate disposition of the{**73 Misc 3d at 220} investigation determines whether the matter "tends to impeach" as that term is used in CPL 245.20 (1) (k) (iv).

A. Meaning of "Tends to Impeach"

CPL 245.20 (1) (k) (iv) requires the People to disclose that which "tends to impeach" a witness.

Two recent decisions by the New York Court of Appeals bear particularly upon this issue: People v Smith (27 NY3d 652, 660 [2016]) and People v Rouse (34 NY3d 269, 277 [2019]).

The 2016 New York Court of Appeals case of People v Smith reaffirmed the long-held principle of law that "law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination." (Smith at 659.) The Court cited to its former precedent from People v Walker (83 NY2d 455, 461 [1994]) that

"impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful. One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility." (People v Smith, 27 NY3d 652, 660 [2016].)

The Court in Smith noted that "[g]iven these central principles, prosecution witnesses—and indeed, even a testifying defendant—may be cross-examined on 'prior specific criminal, vicious or immoral conduct,' provided that 'the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility' " (People v Smith, 27 NY3d 652, 660 [2016]).

Finally, the Smith Court noted the type of allegations which tend to impeach police witnesses are not simply those which have been established at a formal proceeding:

"Likewise, a police witness's prior bad act that similarly has not been proved in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness's credibility simply because the alleged bad acts are not regarded in all cases as [*4]criminal or immoral. Indeed, we have approved cross-examination on a defendant's use of aliases and other suspect, but not criminal, conduct because{**73 Misc 3d at 221}

" 'even where the proof falls outside the conventional category of immoral, vicious or criminal acts, it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or significantly reveals a willingness . . . to place the advancement of his individual self-interest ahead of principle or of the interests of society.'

"As we indicated in Garrett, and emphasize here, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination. The same standard for good faith basis and specific allegations relevant to credibility applies—as does the same broad latitude to preclude or limit cross-examination." (People v Smith, 27 NY3d 652, 661-662 [2016] [citation omitted].)

The 2019 New York Court of Appeals case of People v Rouse (34 NY3d 269, 277 [2019]) addressed issues strikingly similar to those presented to this court. In Rouse, the People's witness was a police officer who had misled a federal prosecutor in an unrelated ticket-fixing scheme. The trial court

"questioned whether that dishonesty was a bad act, concluding, among other things that the elicitation of that officer's 'lack of specificity' to the federal prosecutor would be 'quite damaging' and that, absent proof that officer was either 'administratively sanctioned' with respect to his dealings with that prosecutor or 'federally charged,' there was no 'good faith basis for' exploring that question." (People v Rouse, 34 NY3d 269, 277 [2019].)

The New York Court of Appeals found the trial court in error:

"A 'good faith basis' requires only that counsel have 'some reasonable basis for believing the truth of things' about which counsel seeks to ask. That standard was undeniably met here.

"To be sure, when cross-examined by defense counsel in the present matter, the police officer may have denied that he lied and may have proffered explanations for his behavior that a jury would be entitled to credit. Nevertheless, in the absence of a bar to cross-examination with respect to bad acts of a witness that have never been formally proved at trial, defense counsel should have been allowed to explore the deception in that officer's disclosures to{**73 Misc 3d at 222} the federal prosecutor. The record would then stand with whatever answer that officer might have provided. Thus, while we recognize that the scope of cross-examination rests within the trial court's discretion, here,

" 'it was an abuse of discretion to restrict defendant's right to cross-examine [a] key prosecution witness[ ] based on [an] [apparent] finding that some unidentified prejudice outweighed the probative value of the questions. The questions had a good faith basis and there is no suggestion . . . that the main issues would have been obscured and the jury confused.' " (People v Rouse, 34 NY3d 269, 277-278 [2019] [citations omitted].)

Thus, that which "tends to impeach" under CPL 245.20 is that which tends to demonstrate "an untruthful bent or significantly reveals a willingness . . . to place the advancement of his individual self-interest ahead of principle or of the interests of society," or proof that the person is "guilty of prior immoral, vicious or criminal conduct bearing on credibility." (Smith at 660-661.)

B. Scope of Internal Affairs Investigations

In the instant case, the People provided the court with an affidavit by Deputy Inspector Alexander Crawford, of the Suffolk County Police Department, which this court entered as court exhibit 1 at the hearing of this issue.

Paragraph 12 of Deputy Inspector Crawford's affidavit makes clear that an investigation [*5]by Internal Affairs must be based upon a violation of the Police Department Policy Manual. He further confirmed the sole consideration of an investigation is to determine whether a departmental policy or procedure has been violated (not to determine whether information exists which "tends to impeach"):

"THE COURT: So as you're preparing the summary report, you're not thinking what would a defense attorney find might tend to impeach a witness; your purpose is very different, correct?

"THE WITNESS: Yes, yes, your Honor. Our objective is to conduct a disciplinary investigation to determine whether or not a member of the Department didn't conform with applicable policies or procedures." (Emphasis added.)

While no party offered into evidence the Police Department Policy Manual defining the scope of conduct that may fall under{**73 Misc 3d at 223} investigation by the Internal Affairs Bureau, Deputy Inspector Crawford's affidavit provided illustrations of conduct which have resulted in investigations by Internal Affairs:

Attachment A to the affidavit was a "summary investigative report" related to allegations that the subject officer "did not investigate a motor vehicle crash, wherein the officer faulted the wrong person for being responsible for the crash, and incorrectly listed property damage and the direction of travel of one of the vehicles."

Attachment B to the affidavit was a "command discipline report" related to allegations that the subject officer lost "his department issued cell phone in October 2010."

Attachment C to the affidavit was a "report" related to allegations that two subject officers stopped, searched, interrogated, and falsely arrested two civilians, after which one of the officers touched the arrestee's penis.

Attachment D to the affidavit were two "negative personnel contact reports" related to allegations that the subject officer "exhibited poor attitude or language during encounters with complainants."

Deputy Inspector Crawford's testimony confirmed other topic areas which may be investigated by Internal Affairs:

"Q: And how is that decision made as to whether the investigation is going to be handled by the officer's command or by Internal Affairs?

"A: Generally, the relatively simple investigations deriving from a complaint of unprofessional language or attitude will be referred to the involved member's command.

"Q: And the type of matters that are handled by Internal Affairs?

"A: Are the more significant allegations of misconduct.

"Q: Like what?

"A: Conduct unbecoming, criminal activity, improper police action, improper performance, et cetera." (Tr at 38, lines 7-18 [emphasis added].)

"Q: Since prior to the change in the discovery statute, so prior to January 1, 2020, what was the responsibilities of Internal Affairs?

"A: To conduct disciplinary investigations, to conduct drug testing, alcohol testing, conduct{**73 Misc 3d at 224} inspections of personnel and its facilities and to conduct audits." (Tr at 56, line 22, through 57, line 4 [emphasis added].)

"Q: Okay. Now, you said that not all investigations are handled by IAB, some of them are handled by the individual's commands, right?

"A: Yes, that's correct.

"Q: When you say commands, that could be the Fifth Precinct, the Fourth Precinct, the Second Precinct, the First Precinct?

"A: Yes.

"Q: Okay. And those incidents are usually less serious or more serious?

"A: Less serious than the matters handled by Internal Affairs Bureau.

"Q: Okay, So, basically, violations of policies, et cetera, et. cetera, which wouldn't amount to egregious problems, with somebody, correct?

"A: Yeah, that's fair to say.

"Q: And you, yourself, your bureau, handles the more serious problems, correct?

"A: The more serious observations, yes.

"Q: So accusations of criminal activity on the part of the police officer, correct?

"A: Yes.

"Q: And accusations of police brutality, right?

"A: Yes." (Tr at 67, line 10, through 68, line 10 [emphasis added].)

"Q: Okay. Now, during those investigations, have you had occasion where you found out a police officer was covering for another police officer?

"A: Covering?

"Q: Sure. You know, making a story up, et cetera?

"A: Not that I was able to prove, no.

"Q: How about lying for another police officer?

"A: Again, not that I was able to prove." (Tr at 69, lines 8-18 [emphasis added].)

C. Ultimate Determination by Police Department of Investigations Does Not Address Whether the Allegations "Tend to Impeach"

A review of the above areas of inquiry covered by Internal Affairs investigations reveals all areas do not equally bear{**73 Misc 3d at 225} upon credibility. It is true that certain investigated misconduct clearly bears upon credibility, such as "making a story up" or "lying for another police officer," and therefore information about these investigations would "tend to impeach" the subjects of the investigations.

Other investigated areas may fall into the relevant areas of "immoral, vicious or criminal conduct" such as "accusations of police brutality" and "criminal activity" and would also therefore "tend to impeach."

It appears that certain investigations by IAB such as accusations of "violations of policies," "unprofessional language or attitude," "conduct unbecoming," "improper police action," "improper performance," and loss of a cell phone do not appear automatically to implicate credibility concerns. For example, it is not clear to this court that a sole accusation of a police officer using "unprofessional language" or exhibiting an "unprofessional attitude" would bear upon credibility. Nor would other likely police procedural violations clearly bear upon credibility such as failing adequately to have shined shoes, reporting late to work, or failing to maintain a clean patrol vehicle.

However, the ultimate disposition (i.e. "substantiated," "unsubstantiated," "unfounded," and "exonerated") is not at all dependent on the nature of the allegations, and whether the [*7]allegations have a greater or lesser impact on credibility. It is clear there is no direct relationship between the IAB finding and the extent to which the allegation itself "tends to impeach." Thus, it is unreasonable to limit disclosure only to misconduct findings that are found to be "substantiated" and "unsubstantiated."

To illustrate the difference between Randolph's position and this court's position on this point, the following hypotheticals may be helpful:

Hypothetical A—Subject police officer is accused by his Sgt. of losing his work identification card while pumping gas at a gas station. Internal Affairs receives the complaint, investigates, and makes a determination that the accusation is "substantiated."

Hypothetical B—Subject police officer is accused by her former spouse of lying at a deposition held during a divorce proceeding. Internal Affairs receives the complaint, investigates, and makes a determination that the accusation is "unfounded."

{**73 Misc 3d at 226}Under the Randolph decision the investigation into Hypothetical A must be disclosed, while the investigation in Hypothetical B is not required to be disclosed, based solely upon the ultimate determinations by Internal Affairs, regardless of the underlying accusations.

However, this court disagrees with the propriety of this result, as the allegation of Hypothetical A relates much less to credibility concerns than does Hypothetical B. Under this court's view, a prosecutor must disclose that which "tends to impeach" which is not determined by the categories of "substantiated, unsubstantiated, unfounded, or exonerated."

Put simply, this court does not concur with Randolph's foundational interpretation that only "substantiated" or "unsubstantiated" investigations by IAB "tend to impeach." Rather this court believes that the People must assess, on an individual basis, the allegations underlying each IAB investigation, and by not doing so, it is possible the People are failing to turn over that which is required by CPL 245.20 (1) (k) (iv). Of course, no due process violation results from turning over more than is required by CPL 245.20 (1) (k) (iv), and in fact this is a commendable practice, as noted by the United States Supreme Court in Kyles v Whitley (514 US 419 [1995]), as follows:

"This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U. S., at 108 ('[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure'). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as 'the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.' And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. The prudence of the careful prosecutor should not therefore be discouraged." (Kyles v Whitley, 514 US 419, 439-440 [1995] [some citations omitted].)

Assumption No. 2—The credibility determination by the Police Department is relevant to whether allegations which "tend to impeach" must be disclosed pursuant to CPL 245.20 (1) (k) (iv).

Randolph insists that only material which has been determined by a Police Department official as in some sense credible should be turned over:{**73 Misc 3d at 227}

"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 that tends to or has an inclination to impeach a police witness. [*8]Consequently, IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery." (69 Misc 3d at 772 [citations omitted].)

In line with principles of the Court of Appeals cases of People v Smith (27 NY3d 652, 660 [2016]) and People v Rouse (34 NY3d 269, 277 [2019]), this court reaches a different conclusion, as any allegation which tends to impeach must be disclosed, regardless of credibility determinations.

A. Meaning of Internal Affairs's Dispositions

Deputy Inspector Alexander Crawford clarified the definitions of the dispositions cited above, which revealed that they are the result of credibility determinations by the IAB official who resolves the investigation:

"Q: And what are the different types of findings?

"A: We categorize the allegations of misconduct into dispositions of substantiated, unsubstantiated, exonerated, and unfounded.

"Q: And what are each of those?

"A: Definitions?

"Q: Yes.

"A: Definition of substantiated is that the allegation of misconduct conveyed or discovered pursuant to the investigation has been substantiated, that there is sufficient evidence to corroborate the allegations. Unsubstantiated is a finding when the investigator is unable to obtain any information that corroborates either the officer's account or the complainant's account. And unfounded is when information is adduced pursuant to the investigation that essentially refutes the allegations of the complainant confirming that the alleged action or neglect of action has not occurred. And exonerated is when, again, information is obtained that refutes the allegations of but also confirms that the actual alleged act did occur but it was legal and in conformance with our procedures and policies." (Tr at 45, line 2, through 46, line 2 [emphasis added].){**73 Misc 3d at 228}

It is clear to this court that the dispositions of substantiated, unsubstantiated, unfounded, and exonerated are thus the product of credibility assessments by an IAB official. The statute itself does not mention those findings playing any role in the disclosure obligations of the People. This court concurs in the analysis of the Erie County Court's decision in People v Cooper:

"The definition of 'law enforcement disciplinary records' is expansive and inclusive. It does not distinguish between unfounded, exonerated, substantiated or unsubstantiated. Indeed, there is no indication that any of these terms are used with any uniformity between law enforcement agencies and across the state. Additionally, the definition of 'law enforcement disciplinary records' is a non-exhaustive list referencing 'any record created in furtherance of a law enforcement disciplinary proceeding' (Public Officers Law § 86 [6])" (People v Cooper, 71 Misc 3d 559, 567 [Erie County Ct 2021] [citation omitted]).

B. Role of Prosecutor's Credibility Assessment in Statute

It is the nature of the allegation itself which establishes a good faith basis to impeach, and the credibility assessment of an IAB official may not impact whether the information should be turned over.

The statute, and controlling case law are consistent with this court's view.

Section 245.20—"Automatic discovery" mandates that credibility of an allegation may play no role in determining whether to disclose material which tends to impeach as follows:

"1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, 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, including but not limited to: . . .

"(k) All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: . . . (iv) impeach the credibility of a testifying prosecution witness; . . . Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form{**73 Misc 3d at 229} and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article." (Emphasis added.)

A close review of the above statute indicates that the only determining factor which dictates the nature of the information to be disclosed is that which tends to impeach and the statute specifically precludes any consideration of credibility when determining whether the allegation tends to impeach.

By this formulation, CPL 245.20 matches the 2017 rules imposed by the Chief Judge requiring criminal trial judges to issue Brady orders to prosecutors, i.e., orders to timely disclose exculpatory evidence favorable to the accused. The sample Brady order provided by Judge DiFiore included, in pertinent part, the following language:

"The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case . . .

"Favorable information shall be disclosed whether or not it is recorded in tangible form, and irrespective of whether the prosecutor credits the information." (Emphasis added.)

The Erie County Court recently shared this court's assessment of the above language of CPL 245.20:

"Compliance with the discovery statute ' "requires disclosing 'all known' materials, as well as affirming that due diligence has been exercised to ascertain the existence of any other materials." ' In order for the People to file a valid certificate of compliance they must 'actually turn[ ] over all known material and information.' In other words, the People may not withhold known material and information subject to automatic discovery and expect the court to accept a certificate of compliance and statement of readiness. Considering these concepts in the context of the repeal of 50-a and{**73 Misc 3d at 230} the People's discovery obligation, it is undisputed that police personnel records are in the possession of the police. Therefore, possession of the records is imputed to the People.

"In this case, the People suggest that their discovery obligation as it relates to police personnel records is limited to the subject matter of the charges or the case file. This court does not believe that to be a sound interpretation of the plain language of the statute [*10]or the legislative intent of the statute. CPL 245.20 (1) (k) (iv) specifically delineates and codifies the People's obligation as it relates to categories of information commonly known as Brady/Giglio material: information favorable to the defendant and material tending to impeach the character or testimony of a prosecution witness at trial. Pursuant to CPL 245.20 (1) (k) (iv), 'all evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: . . . (iv) impeach the credibility of a testifying prosecution witness . . . shall be disclosed.' The People have a duty to disclose this information 'whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information.' The law does not allow for this information to be filtered by subject matter or by the People's assessment of its credibility or usefulness." (People v Cooper, 71 Misc 3d 559, 566 [Erie County Ct 2021] [emphasis added and citations omitted].)

C. Role of Police Department's Credibility Assessment

Obviously, if the statute does not allow the People to filter or limit disclosure based upon their own credibility assessments, it certainly cannot permit such limitation based upon an outsourced-credibility assessment by a non-prosecutorial agency (such as Internal Affairs of the Suffolk County Police Department).

An allegation which tends to impeach must be disclosed, and guidance for what constitutes impeachment material has been described by the Court of Appeals in People v Walker as follows:

"To answer this question, we begin with the elementary premise that impeachment is a particular form{**73 Misc 3d at 231} of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful. One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility. Such cross-examination is not limited to questions about prior crimes or like misconduct. Rather, even where the proof 'fall[s] outside the conventional category of immoral, vicious or criminal acts,' it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or ' "significantly reveal[s] a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society." ' " (People v Walker, 83 NY2d 455, 461 [1994] [citations omitted].)

Conclusion

The Court of Appeals, through the cases of People v Walker (83 NY2d 455, 461 [1994]), People v Smith (27 NY3d 652, 660 [2016]) and People v Rouse (34 NY3d 269, 277 [2019]), made clear that acts of misconduct by police officers, which tend to impeach, are to be treated like any other acts of misconduct which tend to impeach, and that police officers are to be treated like any other witnesses. These cases tell us that it is not the ultimate adjudication by an internal affairs agency that determines whether an allegation based upon a good faith basis shall be disclosed. To the contrary, the Court of Appeals criticized a trial court's limitation imposed on that basis. (See People v Rouse, 34 NY3d 269, 277 [2019].)

This is why this court has a slightly different interpretation of the disclosure requirements than does People v Randolph. That decision required the People to disclose all allegations that are found to be "substantiated" and "unsubstantiated," as such [*11]investigations "tend to impeach."

This court disagrees that such matters automatically tend to impeach, without examination or consideration of the underlying allegations. Rather, with respect to each misconduct investigation, the People must determine whether the allegations underlying that investigation tend to impeach, and whether the allegations have a good faith basis (without reference to any credibility determinations by the prosecutor or the{**73 Misc 3d at 232} Police Department). Upon determination that an allegation tends to impeach and has a good faith basis, the investigation must be disclosed.

Having distinguished this court's understanding of CPL 245.20 (1) (k) (iv) from People v Randolph, this court next turns to the arguments presented by the People—(1) the investigative summary generated by Internal Affairs contains all evidence and information which "tends to impeach" related to that investigation which must be disclosed pursuant to CPL 245.20 (1) (k) (iv), and (2) the People are not in possession of the underlying files of Internal Affairs, and cannot be compelled to disclose such records.

People's Argument No. 1—The investigative summary generated by Internal Affairs contains all evidence and information which "tends to impeach" related to the investigation which must be disclosed pursuant to CPL 245.20 (1) (k) (iv).

The primary disagreement between the parties before the court is whether the investigative summary generated by the Internal Affairs investigator contains all evidence and information which "tends to impeach" and therefore whether the People may satisfy their obligations by disclosing only this document, or whether the underlying file must also be disclosed.

A. Statutory Burden to Identify Brady is on the People

The statutory scheme at CPL 245.20 (2) places the burden upon the People to ascertain the existence of Brady material, as follows:

"2. . . . The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This{**73 Misc 3d at 233} subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph (c) or (e) of subdivision one of this section." (Emphasis added.)

The People are also under a simultaneous Brady order as directed by the Chief Judge as follows:

"The District Attorney and the Assistant responsible for the case have a duty to learn of such favorable information that is known to others acting on the government's behalf in the case, including the police, and should therefore confer with investigative and prosecutorial personnel who acted in this case and review their and their agencies' files directly related to the prosecution or investigation of this case." (Emphasis added.)

B. The People Have No Role Creating the Investigative Summary

On this issue, the People have presented internally contradictory information. The prosecutor's oral presentation to this court indicated that he relies upon the Internal Affairs Bureau to prepare an investigative summary containing all of the information that tends to impeach:

"THE COURT: I got a question, I don't mean to disrupt your flow. I want to hear everything that you wish to say, but I'm curious to know on a case that you're prosecuting, are you reviewing underlying IAB files to determine whether the summary accurately reflects that which tends to impeach, or are you relying entirely upon the summary that's provided?

"MR. SCARGLATO: Those IAB files, Judge, I would contend, are not in the District Attorney's possession, so, therefore, I am relying on the case summary reports that are provided because those case summary reports provide ample information." (Tr at 97, line 13, through 98, line 2.)

"THE COURT: But it puts upon the prosecution an ethical obligation to determine that which tends to impeach and to provide it. So my question is, it puts—you're under a constitutional obligation under Brady and a statutory obligation under 245 to do that. And I guess I'm just simply asking, are you trusting that the summary report you get from{**73 Misc 3d at 234} the police department is sufficient to satisfy that obligation that you have?

"MR. SCARGLATO: Yes." (Tr at 100, lines 2-14.)

"THE COURT: So what I hear you saying is that right now you view the extent of your obligation to be a review of the summary reports that are provided by the police department.

"MR. SCARGLATO: Yes, Judge, that's what is dictated by—what is only dictated by the statute." (Tr at 101, line 24, through 102, line 6.)

The People cannot claim simultaneously (1) that the investigative report contains all Brady material found in the underlying records, and (2) that they have not reviewed the underlying records to ascertain whether the investigative report contains all Brady material. Yet that is the People's position revealed by the oral argument.

But when the court questioned Deputy Inspector Crawford on this very issue, of whether the police investigator preparing the report is under any obligation to include all information which "tends to impeach," the Deputy Inspector indicated that is not the function of the report:

"THE COURT: So as you're preparing the summary report, you're not thinking what would a defense attorney find might tend to impeach a witness; your purpose is very different, correct?

"THE WITNESS: Yes, yes, your Honor. Our objective is to conduct a disciplinary investigation to determine whether or not a member of the Department didn't conform with applicable policies or procedures." (Tr at 79, line 19, through 80, line 3.)

Yet, despite this concession, Deputy Inspector Crawford then indicated that any credibility information would be contained in the report.

"THE COURT: I'm going to ask the lawyer part of you this question—

"THE WITNESS: Okay.

"THE COURT:—not the police officer part of you this question. Do you think it would be fair to determine or to assume, perhaps, in some of the underlying records, there might be information that is not contained in the summary report that a lawyer might find of use in cross-examining a police officer witness that they might think would tend to impeach that may not have been put in the summary report?{**73 Misc 3d at 235}

"THE WITNESS: Your Honor, anything involving either [sic] the credibility of any of the officers involved in the investigation would be relevant to that disciplinary investigation." (Tr at 80, lines 4-22.)

However, Deputy Inspector Crawford's affidavit appears to concede that the underlying disciplinary files are required to be turned over by CPL 245.20, in paragraph 21 as follows:

"21. All disciplinary files of Suffolk County Police Officers are maintained and in the possession of the Suffolk County Police Department. We have attempted to respond to the requests of the Suffolk County District Attorney's Office to provide substantiated and unsubstantiated disciplinary records and Notices of Claim of the police officers as expeditiously as possible, but the requests have placed an extraordinary burden on our department resources. The department understands the statutory requirement to provide these reports for impeachment purposes, but providing all disciplinary files for each officer involved in a criminal prosecution would be extremely burdensome. Upon the request of the District Attorney's Office, we have provided, only as necessary, in addition to the summary reports, the entire file or parts of the file, but complaints have been investigated by either the Internal Affairs Bureau or the cognizant command and have been reviewed for completeness and accuracy and reported in the case summary/investigation report. Locating, retrieving, uploading, scanning and forwarding entire disciplinary files for all cases would severely tax our limited resources." (Emphasis added.)

C. Conclusions Regarding Sufficiency of Investigative Summary on Satisfying Brady Obligations

Put simply, this court does not concur with the People's position that CPL 245.20 permits them to delegate their statutory responsibility to ensure that all Brady material has been included in the investigative report of police misconduct to police investigators. As it is a nondelegable duty, nor may the People rely upon a claim by Internal Affairs investigators that the investigators have satisfied the People's obligations under CPL 245.20.{**73 Misc 3d at 236}

People's Argument No. 2—The People are not in possession of the underlying files of Internal Affairs, and cannot be compelled to disclose such records.

The People have made a two part argument that first—they are actually unaware what the underlying internal affairs files contain, and that lack of awareness relieves them of the burden to disclose material found in those underlying files, and second—they are not in actual possession of the underlying files, and therefore cannot make themselves aware of the contents thereof.

A. The People claim they are not required to seek out favorable information.

On the first issue, the People insist they are not required to seek out all potentially favorable information in possession of the Internal Affairs Bureau of the Suffolk County Police Department, and are not required to obtain possession of anything that extends beyond the prosecution of the instant charge, as they have stated:

"The provisions enacted instead represent a statutory embodiment of the well-established [*14]principles set forth by the United States Supreme Court in Kyles v Whitley. The obligation to disclose all relevant information related to the prosecution of a charge does not extend to obtaining, much less disclosing, all information possessed by the police concerning wholly unrelated police officer conduct . . . The Court in Kyles did not impose upon prosecutors the duty to seek out all information that might be of conceivable interest to the defense. Considering that the Supreme Court's broad language about providing 'any favorable evidence known to the others acting on the government's behalf including the police' has been the law for 25 years and has never been applied to require wholesale disclosure of collateral impeachment material contained in police personnel files, it is thus evident, for example, that the production of unfounded and exonerated claims has no constitutional footing." (People's mem of law at 12.)

B. However, the People are actually aware of investigations in this case.

The People's reliance upon Kyles appears misplaced, as the Kyles case did not address actual knowledge by a prosecutor, but rather referred to imputation of knowledge of favorable impeachment evidence. Kyles does not apply here, as the People{**73 Misc 3d at 237} cannot claim to be unaware of the misconduct allegations at issue. Rather than being able to claim ignorance of any such allegations, they are both aware of the allegations, and have provided summary reports regarding these allegations. This interpretation by the People that "[t]he obligation to disclose all relevant information related to the prosecution of a charge does not extend to obtaining, much less disclosing, all information possessed by the police concerning wholly unrelated police officer conduct" (emphasis added) conflicts with the appellate cases in this area, even those cited by the People.

For example, in 2016, the New York Court of Appeals decided People v Smith (cited by the People on page 23 of their memorandum of law), which specifically noted that

"the primary issue in these appeals is whether the trial courts abused their discretion in precluding any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit. These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination." (People v Smith, 27 NY3d 652, 659 [2016] [emphasis added].)

The Court in Smith held that the impeachment evidence which was unrelated to the instant prosecution should have been permitted as fodder for cross-examination.

Likewise, in 2000, the New York Court of Appeals decided People v Santorelli, which noted the People have the obligation to learn from local police that which tends to impeach their witnesses and to disclose it to the defense:

"In Brady v Maryland (373 US 83, supra), for example, the United States Supreme Court held that due process requires prosecutors to disclose information in their possession or control that is both favorable and material to the defense. The requirement that the Brady material be in the People's possession or control, moreover, has not been interpreted narrowly. A prosecutor must 'learn of any favorable evidence known to the others acting on the government's behalf in the case' and promptly disclose any such material evidence to the defendant.

"Thus, this Court has charged the People with knowledge of exculpatory information in the possession{**73 Misc 3d at 238}of the local police, notwithstanding the trial prosecutor's own lack of knowledge." (People v Santorelli, 95 NY2d 412, 421 [2000] [emphasis added and citations omitted].)

Likewise, in 1995, the New York Court of Appeals decided People v Wright, which held the People could not be relieved of their obligation to turn over Brady material by the individual trial prosecutor's failure to discover information which the police possessed:

"The mandate of Brady extends beyond any particular prosecutor's actual knowledge. Furthermore, 'the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.' The People therefore were not relieved of their obligation to turn over Brady material by the trial prosecutor's failure to discover that the police were in possession of exculpatory information (see, People v Simmons, 36 NY2d 126, 132 ['(n)egligent, as well as deliberate, nondisclosure may deny due process'])." (People v Wright, 86 NY2d 591, 598 [1995] [emphasis added and citations omitted].)

This court disagrees with the People's position that they are not responsible to seek out and provide information unrelated to the instant prosecution and finds it inconsistent for the same reasons set forth by the Supreme Court, Bronx County in People v Castellanos (72 Misc 3d 371 [Sup Ct, Bronx County 2021]), which responded to the same argument as follows:

"The NYPD's argument that underlying records are not subject to automatic discovery also relies heavily on the prefatory language of CPL 245.20 (1), which states: '[t]he prosecution shall disclose to the defendant . . . all items and information that relate to the subject matter of the case.' (Emphasis added.) The statute goes on to detail an extensive but not exhaustive list of the material the People must provide. The NYPD argues that, because impeachment material is not 'subject matter of the case,' there is no obligation to provide anything more than a list or summary of that material. This is wrong. While section 245.20 (1) uses the language 'subject matter of the case,' this cannot be interpreted to limit the People's obligation to provide impeachment material under CPL 245.20 (1) (k) (iv). Impeachment evidence has never been restricted{**73 Misc 3d at 239}to material related only to the particular case, such as inconsistent statements, omissions, or misconduct. (See e.g. People v McCray, 23 NY3d 193 [2014] [mental health records]; People v Hunter, 11 NY3d 1, 6 [2008] [concerning impeachment of the victim through previous, allegedly false, rape complaints]; People v Williams, 7 NY3d 15 [2006] [Brady violation where People did not disclose that police witness lied before grand jury in unrelated case].) If this interpretation is accepted, the People would have no obligation to provide even substantiated misconduct complaints that were unrelated to the police officer's conduct in the particular case. While reasonable judicial minds may differ as to the extent of the information necessary to satisfy the People's obligations, it cannot be because that information is not technically the subject matter of the case." (People v Castellanos, 72 Misc 3d 371, 377-378 [Sup Ct, Bronx County 2021] [emphasis added].)

Likewise, the Bronx Criminal Court addressed a similar argument made by the People in People v Porter:

"In enacting the revised discovery procedures for 2020, the legislature urged that the statutory framework be interpreted with 'a presumption in favor of disclosure.' Reinforcing the presumption of complete disclosure of police misconduct files is the June 2020 repeal of Civil Rights Law § 50-a. The repeal of Civil Rights Law § 50-a further erodes asserted claims of confidentiality in relation to police personnel files. Analyzing the plain [*16]language of the statute, the legislative intent of the revisions to article 245, and the repeal of Civil Rights Law § 50-a, the court holds that the clear intent of the legislature is to further enable defense access to these files. Therefore, the court orders that the disciplinary records of the substantiated allegations must be disclosed to the defense in their entirety.

"Undoubtedly, the People acted in good faith in advising the defense by letter of the specific allegations of misconduct and discipline received involving the two police witnesses, especially as several lower courts have rules in accord with the People's interpretation. However, this court is of the opinion{**73 Misc 3d at 240} that the holdings of Gonzalez, Knight, and Suprenant contravene both the plain mandates of the new discovery rules and the underlying intent of the revisions to ensure openness in criminal trial preparation.

"The People argue that possession should not be imputed to the prosecution, since the disciplinary records were created for administrative purposes and not to prosecute the instant charges. Yet, the People do not maintain that as a practical matter the records are difficult to obtain. Whether or not the defense can pursue other avenues of disclosure does not relieve the People of their obligation to provide these records. The repeal of Civil Rights Law § 50-a eliminates barriers and obstacles that may have inhibited access to such records in the past. In fact, it appears that the People already have in possession [sic] at least some evidence from the officers' Internal Affairs Bureau (IAB) records, since a short summary of information contained within those records was provided as discovery in the August 25, 2020 letter to the defense." (People v Porter, 71 Misc 3d 187, 190-191 [Crim Ct, Bronx County 2020] [emphasis added and citations omitted].)

In any event, the People cannot make a legitimate claim that they are unaware of the misconduct investigations in this case. The People have established their knowledge of the misconduct investigations by providing the summary investigative reports themselves.

C. The People claim they do not possess the underlying files.

The only question remaining on this issue is whether the People are in possession of the underlying files regarding each investigation.

The subject statutory scheme requires the prosecutor to maintain a relationship with the police such as to place within the prosecutor's possession all material and information required to be turned over by 245.20 as follows:

"Section 245.55 Flow of information

"1. Sufficient communication for compliance. The district attorney and the assistant responsible for the case, or, if the matter is not being prosecuted by the district attorney, the prosecuting agency and its assigned representative, shall endeavor to{**73 Misc 3d at 241}ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20 of this article." (CPL 245.55 [1] [emphasis added].)

D. The People are able to obtain the underlying files on request.

It does appear from the testimony of Deputy Inspector Crawford that the People have complied with CPL 245.55, in that there appears to be cooperation between the Internal Affairs Bureau and the District Attorney's Office. It is clear that the Deputy Inspector would be able to honor a request from the prosecutor for the underlying files, if such a request were made: