The defendant, Joseph Alexander, was arrested by officers of the New York City Police Department's Brooklyn South Narcotics Division and charged with criminal possession of a controlled substance in the third degree, in violation of Penal Law § 220.16. Since his arrest, reports have surfaced of widespread corruption within the Brooklyn South Narcotics Division: officers have underreported seized narcotics and used the unreported drugs to pay off informants. Al Baker, Drugs-for-Information Scandal Shakes Up New York Police Narcotics Force, NY Times, Jan. 24, 2008, at B1. Defendant's counsel has subpoenaed the police personnel files of the arresting officer and other members of the arresting unit, claiming that information within the files may exculpate the defendant. The police department has moved to quash the subpoena.

Civil Rights Law § 50-a was enacted in June 1976 to resolve a conflict between the common-law notion of "official information" and liberalized discovery practices that generally allowed defendants access to information. The statute's first subdivision generally makes police records privileged and only allows disclosure of the records with either the consent of the officer or by court order. Subdivision 2 requires a "clear showing of facts" by the movant for the court [*2]to issue an order. Subdivision 3 requires that the judge review the records in camera and only make available those parts that are "relevant and material."

The main precedent on the interpretation of these standards is People v. Gissendanner, 48 NY2d 543 (1979). In Gissendanner, the defendant sought the employment records of the arresting officers in order to find information to discredit their testimony. The Court of Appeals established that in order to access the privileged records, the defendant must assert that the records' contents would "directly bear on the hard issue of guilt or innocence." Id. at 550. As such, Gissendanner was distinguishable from prior cases in which police records were found to be discoverable due to showings of a "motive to falsify," Davis v. Alaska, 415 U.S. 308 (1974), or "peculiar relevance" to the specific circumstances, People v. Puglisi, 44 NY2d 748 (1978).

No such showing exists here. The defendant's argument is that other officers in the

Brooklyn South Narcotics Division have been exposed as corrupt, and this is grounds for examining the arresting officer's records to determine whether he has a record of corruption. This argument is flawed in two respects. First, the mere existence of corruption among other officers in the division does not imply that the arresting officer was himself corrupt. Second, the sorts of corruption found in the Brooklyn South Narcotics Division include only paying informants with stolen narcotics; there are no reports of false arrests or falsified testimony. As such, the defendant has not credibly established cause for examining the privileged police records.

The motion to quash the subpoena is granted.

The foregoing is the decision and order of the court.

Dated: New York, New York

June 25, 2008

Laura A. Ward

Acting Justice Supreme Court