The following papers were considered on the People's motion seeking vacatur of the Court's Amended Compliance Conference Order dated November 22, 2021: (1) the Order to Show Cause and Affirmation in Support of District Attorney Thomas E. Walsh, II, (2) the Affirmation in Opposition of Assistant Public Defender Stefanie Jordan, (3) the Reply Affirmation of ADA Veronica Phillips, and (4) the memoranda of law of the Town of Ramapo Police Department and the Rockland County Police Benevolent Association as amici curiae.^[FN1]

Upon the foregoing papers, the motion is disposed of as follows:

On November 10, 2021, the Court held a compliance conference in this matter to address outstanding discovery issues. During the conference, the defense objected to the sufficiency of the People's inquiry of police or other law enforcement agencies acting on the government's behalf as required by CPL § 245.20(1)(k). The People advised that as to the instant prosecution, the following questions were posed to relevant law enforcement officers:

1. Have you ever been convicted of a criminal offense as defined by the NYS Penal Law or Article 31 of the NYS VTL (Alcohol and Drug related offenses)?

2. Are you aware of any pending criminal complaints against you? (If so, don't give details-just charge, jurisdiction and defense attorney)

3. Are you aware of any past or currently pending findings or decision by a court that you were untruthful? (If yes, What case?)

4. Are you aware of any past or currently pending civil lawsuits or substantiated departmental complaints of misconduct that may bear on the credibility of your testimony in this case?

Among other objections, the defense argued, as it does here, that the scope of question No.4 was too narrow because the People have an obligation pursuant to CPL § 245.20(1)(k) to provide more than just substantiated complaints of misconduct but unsubstantiated, exonerated, and unfounded complaints as well. At the conference, the Court directed the People to inquire further as to unsubstantiated complaints of misconduct and issued a compliance conference order dated November 10, 2021 and, subsequently, the Amended Compliance Conference Order dated November 22, 2021 that is now at issue.^[FN2] The Amended Compliance Conference Order states:

To facilitate compliance with Article 245, the Court in its discretion ORDERS the following:

1 The People are to advise in writing whether any of the law enforcement officers who are potential testifying prosecution witnesses have ever been the subject of any civil suits or departmental complaints of misconduct whether substantiated or unsubstantiated.

2. The People are to advise the names and dates of the suits and complaints, if any.

3. The People confirm that the inquiry will be made of a superior officer who will confirm having reviewed the subject officers' personnel files.

4. The People are to file an additional COC pursuant to CPL § 245.35(3) as the Court previously directed on 5/12/21 and 7/13/21. Pursuant to CPL § 245.35(4), the additional COC shall also list all police officers and other persons who have participated in investigating or evaluating the case and confirm that each one of those individuals has responded to the prosecution's inquiries under subdivision three of CPL § 245.35.

5. All of the above is to be submitted by 11/30/21.

The People argue, among other things, that their inquiry was sufficient to satisfy their CPL § 245.20(1)(k) obligations, and the Court should not have ordered the People to disclose materials not discoverable pursuant to Brady and its progeny such as unsubstantiated departmental misconduct complaints. The People also contend the Court should stay this prosecution until the Appellate Division enters a determination and judgment in a CPLR Article 78 proceeding (Matter of Sini v. Hon. Chris Ann Kelley et al., Suffolk Co. ind. No. 1064-19 [App. Div. 2d Dept]). There, the petitioner Suffolk County District Attorney is challenging the Suffolk County Supreme Court's order requiring disclosure of the entirety of the misconduct investigation files of the relevant officers in a prosecution including substantiated, unsubstantiated, unfounded, and exonerated allegations of misconduct.

The defendant opposes the motion and argues that the Court was within its authority to [*2]issue the Amended Compliance Conference Order directing disclosure of substantiated and unsubstantiated complaints of misconduct. The defendant also contends that, in fact, the Court did not go far enough, and the Court should have also directed the disclosure of the existence of unfounded and exonerated allegations of misconduct. This is so, the defense contends, because CPL § 245.20(1)(k) does not provide for the determination of what is discoverable to be guided by the People's assessment of the credibility or usefulness of the allegations for impeachment. The defense also argues that the failure of the People to examine the relevant officers' disciplinary files themselves means they did not exercise due diligence in determining the existence of discoverable impeachment material.

As is relevant here, CPL § 245.55(1) provides:

Sufficient communication for compliance. "The district attorney and the assistant responsible for the case . . . shall endeavor to 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." (emphasis added).

CPL § 245.20(1) provides in pertinent part:

The prosecution shall disclose to the defendant . . . 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 . . . irrespective of whether the prosecutor credits the information.

Once the People have disclosed this evidence and information, they are required to file a certificate of compliance that certifies that the People have exercised "due diligence" and made "reasonable inquiries" in obtaining and providing discoverable materials (CPL § 245.50[1]).

To begin, the Court disagrees with the People's view that CPL Article 245 is merely an attempt at codifying Brady and its progeny. While CPL § 245.20(1)(k) is a codification of certain categories of information favorable to the defense required to be disclosed by the People, the framework of CPL Article 245 imposes additional obligations on the People. One such obligation placed on the district attorney, or the assigned assistant, is to "endeavor to ensure that a flow of information is maintained between the police . . . and his or her office sufficient to place within his or her possession or control" all the evidence and information described in CPL § 245.20(1)(k) (CPL § 245.55[1]). Thus, for the People to demonstrate they have exercised the "due diligence" required to file a certificate of compliance, they must ensure a flow of information that causes all impeachment evidence or information that is in the possession of the police, to also be in the People's possession (CPL § 245.50[1]; CPL § 245.20[1][k][iv]).

In other words, due diligence requires that the testifying police witnesses' personnel [*3]records be reviewed for impeachment material. Simply asking questions of individual police officers, as the People did here, is not enough. It is the Court's view that it is up to the People to designate who will review personnel records to ensure the People's compliance with CPL § 245.20(1) and CPL § 245.55(1). It nevertheless remains the People's obligation by statute to ensure all the evidence and information required by CPL § 245.20[1][k] is disclosed prior to filing a certificate of compliance with the Court. Where appropriate, the People can seek accommodations such as, among others, a protective order to limit disclosure of information (CPL § 245.70[1]), or an extension of time upon a showing of good cause (CPL § 245.70[2]) to obtain flexibility that the People may need while they endeavor to diligently meet their discovery obligations.

To that end, the question of what evidence and information tends to "impeach the credibility of a testifying prosecution witness" is an important one (CPL § 245.20[1][k]). Chief Judge DiFiore's Advisory Committee's Guide to New York Evidence (rule 6.16, Impeachment of a Law Enforcement Officer) explains that the credibility of a law enforcement witness may be impeached "by evidence that has a tendency in reason to discredit the truthfulness or accuracy of the witness's testimony". Impeachment evidence is not limited to allegations of dishonesty against an officer. "[E]ven 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 reveals a willingness or disposition on the part of the particular [witness] 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]).

Considering this relatively broad category of prior acts that may be relevant for impeachment purposes, the court in People v Randolph, 132 NYS3d 726 (Sup. Ct., Suffolk County, Sept. 15, 2020, Cohen, J.) identified a useful framework for the categorization of departmental misconduct allegations. "[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 [the] evidence establish[ed] that the act did not occur" (id. at 727).

Here, the Court ordered the People to inquire of the police as to both substantiated and unsubstantiated misconduct allegations in civil suits or departmental complaints as to potential testifying prosecution witnesses.^[FN3] The People argue that unsubstantiated allegations are not discoverable under Brady and its progeny. The defense argues the materiality requirement of Brady is replaced in CPL § 245.20(1)(k) with a less stringent "tends to impeach" standard and, thus, unsubstantiated, unfounded, and exonerated allegations of police misconduct that tends to impeach their credibility should be disclosed by the People.

The Court is persuaded by the analysis and holding in Randolph that falls somewhere in the middle. There, the court found that the People must disclose all evidence and information of substantiated and unsubstantiated allegations of police misconduct by testifying prosecution witnesses pursuant to CPL § 245.20(1)(k)(iv). As the note to rule 6.16 of the Guide to New York Evidence explains, allegations in a civil lawsuit that are relevant to the credibility of a police [*4]officer may be used for impeachment at trial whether or not the allegations resulted in an adverse finding against that officer, subject to the trial court's discretion (see id. at 4 citing People v Smith, 27 NY3d 652, 662 [2016]). Thus, even unsubstantiated allegations of police misconduct can be properly used to impeach a police officer on cross-examination, all subject to admissibility determinations by the trial court.

However, the Court finds that exonerated and unfounded allegations are not discoverable as impeachment material because "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" (Randolph at 727). As the defense notes, this view of what category of allegations of police misconduct are discoverable for impeachment purposes is shared by many other courts in the state (see People v Akhlaq, 71 Misc 3d 823 [Sup. Ct., Kings County, 2021]; People v Castellanos, 71 Misc 3d 1221[A] [Sup. Ct., Bronx County, 2021]; People v Kelley, 71 Misc 3d 1202[A] [Crim. Ct., New York County, 2021]; People v Perez, 71 Misc 3d 1214[A] [Crim. Ct., New York County, 2021]).

The remaining issue, then, is whether the underlying disciplinary records of substantiated and unsubstantiated misconduct allegations must be disclosed to the defense or, if a summary of the allegations will suffice. In the Matter of Jayson C., 2021 Slip. Op. 06794 (1st Dept 2021), the appellant juvenile sought disclosure in a delinquency proceeding of police disciplinary records from the presentment agency pursuant to CPL § 245.20(1)(k)(iv). The presentment agency provided letters that summarized the disciplinary history of fourteen police officers who were involved in the arrest and investigation of the appellant. It asserted these letters satisfied the agency's discovery obligations to provide impeachment information as it related to the four testifying police officers. The Family Court denied the appellant's request for discovery pursuant to CPL § 245.20(1)(k) because it held CPL Article 245 did not apply to juvenile delinquency proceedings under the Family Court Act.

The Appellate Division panel unanimously reversed on equal protection grounds, finding that the appellant was entitled to discovery under CPL Article 245 because impeachment evidence is equally crucial to juveniles in delinquency proceedings as it is to defendants in criminal prosecutions. Moreover, the Appellate Division found that letters summarizing the disciplinary history of the officers were not enough to satisfy the presentment agency's obligations under CPL Article 245. Specifically, the panel held that it was "the denial of records available under CPL § 245.10(1)(k), which broadly requires disclosure of all impeachment evidence" that constituted the equal protection violation (Matter of Jayson C. at 2) (emphasis added).

Consequently, I find that the People must disclose all the underlying disciplinary records of all substantiated and unsubstantiated allegations of police misconduct for all testifying prosecution witnesses in order to be in compliance with CPL § 245.10(1)(k)(iv). This disclosure must be complete before the filing of a certificate of compliance absent a protective order (see CPL § 245.50[1]). To the extent the People argue that disciplinary records are not in their possession so they cannot be required to disclose impeachment material from those records, this argument is unpersuasive. As stated above, CPL § 245.55(1) requires the district attorney or the assigned assistant to endeavor to ensure a flow, from the police to the People, of all evidence or information discoverable under CPL § 245.20(1)(k) "sufficient to place [it] within his or her possession or control." In other words, the test of whether the People have satisfied their CPL § 245.20(1)(k)(iv) obligations is whether those efforts have, in fact, ensured they possess or [*5]control all impeachment material in a testifying officer's disciplinary records. If they are not able to do so by the timelines set out in CPL Article 245, as explained above, there are remedies available to provide accommodations while their efforts continue.

As to the People's request for a stay of this proceeding pending the determination and judgment of the Appellate Division in Matter of Sini, that request is denied. The defendant's incarceration militates against any delay of the prosecution due to a discovery dispute. Moreover, the Appellate Division's recent decision in Matter of Jayson C. makes it clear that the People are required to turn over the relevant disciplinary records in order to satisfy the requirements of CPL § 245.20(1)(k)(iv).

This Court is cognizant that this is the first time this Court has written a decision articulating its view of what the People's obligations are pursuant to these sections of CPL Article 245. As such, the Court ascribes no lack of due diligence to the People for not having previously turned over disciplinary records in this matter for testifying prosecution witnesses. In light of the foregoing, it is hereby

ORDERED that the People's motion is granted to the extent that the Amended Compliance Conference is hereby vacated, and it is further

ORDERED that the People are to disclose to the defense the underlying disciplinary records of all substantiated and unsubstantiated allegations of police misconduct, if any, for all testifying prosecution witnesses within 20 calendar days of the date of this order, subject to a request for a protective order (CPL § 245.70[1]) or a modification of the time period for disclosure for good cause (CPL § 245.70[2]), and it is further

ORDERED that the People are to file an additional certificate of compliance within 20 calendar days confirming they have provided all discovery required pursuant to CPL § 245.20(1)(k)(iv) consistent with this decision.

This constitutes the Decision and Order of the Court.