Defendant moves, pursuant to Civil Rights Law §50-a, for, inter alia, a so-ordered subpoena directing non-party New York City Police Department ("NYPD") to deliver personnel records and records of Internal Affairs Bureau ("IAB") investigations and a so-ordered subpoena directing non-party Civilian Complaint Review Board ("CCRB") to deliver all documents and information regarding three individually named police officers involved in defendant's apprehension and arrest — Police Officer Walsh, Detective Viar, Police Officer Brienza — to the Court for an in camera inspection, insofar as defendant alleges that such records contain evidence relevant and material to the defense of the instant criminal matter. After a review of the moving papers, non-party NYPD's and CCRB's separate written opposition to the issuance of a subpoena calling for production of documents in its custody and control, the Supreme Court file and relevant statutory and case law authority, the motion is denied.^[FN1]

Defendant stands charged by the instant Indictment with Criminal Possession of a Weapon in the Third and Fourth Degrees as well as Criminal Possession of a Firearm in connection with his alleged possession of a handgun recovered by the police at a location outside an apartment at 123 Park Avenue, Brooklyn New York, on or about January 10, 2014, wherein defendant either resided or was a guest and which was entered by the police without a warrant to effect defendant's arrest. The Court has sustained the Indictment by Decision and Order dated June 16, 2014 following an in camera review of the pertinent Grand Jury minutes, and by Decision and Order Dated January 7, 2015 the Court directed that a combined pretrial Dunaway/Huntley/Payton/Mapp hearing be held to resolve disputed suppression issues.

In support of the instant application, defendant avers an investigation reveals: (1) six federal civil cases wherein Officer Walsh and other parties were purportedly sued by individuals claiming he made false arrests and/or accusations of criminal conduct, five of which were settled (two for a sum certain, three for an undisclosed amount) and one is "currently pending", in addition to four federal civil cases of undisclosed status involving allegations of police use of excessive force and three federal civil cases in which PO Walsh was sued "for violating people's rights when they were simply behaving lawfully", also of undisclosed status; (2) two federal civil cases of undisclosed status wherein Det. Viar and other parties were purportedly sued by individuals claiming he made false arrests and/or accusations of criminal conduct; and (3) a search regarding Officer Brienza "did not disclose any lawsuits, [but] this does not mean he has not engaged in a similar pattern of police misconduct."^[FN2]

Defendant — although he does not dispute a firearm was recovered by the police or that he was alone inside the apartment at the time he was actually seized and placed under arrest — asserts statements he made to law enforcement and his possession of a firearm "are a complete fabrication" by the officers who are the subject of the subpoenas at issue, argues that based upon the his investigation "the need for an in camera inspection of their personnel records for information related to misconduct of the officers, which directly impact witness credibility, is great[,]" and concludes that "PO Walsh, Brienza and Det Viar's present fabrications extend from a pattern of similar allegations and police misconduct." The Court disagrees.

Upon such scant evidence as proffered here, a conclusion that the factual predicate supporting production and inspection of NYPD personnel disciplinary records, IAB investigatory records or CCRB records may not be based. Defendant has failed to even establish that "prior incidents of misconduct" have been found, or documented, by the NYPD or CCRB against any of the three officers which are the subject of defendant's subpoena requests, nor that there has been any acknowledgment of fault or liability by them in any of the settled cases to which defendant cites. Although the unrelated federal cases cited purportedly encompass allegations of false accusations against civilians made by two of the officers here — upon review of defendant's contentions, the Court may only surmise the basis of PO Brienza's suspected perpetration of similar behavior must be guilt by association with PO Walsh and Det. Viar — none lend any credence to defendant's unfounded contentions that all three of these officers have engaged in a pattern of misconduct or that "there is a solid basis to believe that the personnel files of these officers will bear fruit.'" While this Court does not so find, perhaps the information at hand may, upon verification of lawsuit party identity and subject to judicial discretion, provide material for cross examination at trial. In any event, at this stage, there has been no "clear showing of facts" sufficient to warrant a request for records, and defendant has failed to demonstrate a sound basis for an examination beyond conjecture as to the contents of the records sought. See, generally, People v. Landa, 28 AD3d 582 (2nd Dept. 2006); People v. Valentine, 160 AD2d 325 (1st Dept.), lv denied, 76 NY2d 797 (1990); compare, Becker v. City of New York, 162 AD2d 488 (2nd Dept. 1990); People v. Jackson, 237 AD2d 179 (1st Dept.), lv denied, 89 NY2d 1095 (1997); People v. Hall, 180 Misc 2d 667 (S. Ct. Kings Co. 1999); People v. Oglesby, 177 Misc 2d 580 (S. Ct. Kings Co. 1998); People v. Francis, 149 Misc 2d 693 (S. Ct. Monroe Co. 1991). Consequently, having failed to meet the standards set forth in People v. Gissendanner, supra, permitting the Court to compel production of police personnel records from the NYPD and CCRB, defendant's application must be denied.

In light of the above determination, the Court does not reach the issue of notice (see, Civil Rights Law 50-a[2]), but must point out that such notice of the instant motion as was provided [*2]here may not have been sufficient. In the Court's opinion, the better practice would be to properly substantiate that notice has been given — for example, via affidavit or affirmation of service filed with the Court — to all "interested parties", i.e., not only the owner/custodian of the records sought, but also the People and the individuals about whom such records were generated, in order to adequately ensure a full opportunity to be heard. Under the circumstances presented here, the NYPD, the CCRB, the People and the subject police officers whose records are sought, are all, in the Court's view, "interested parties", who should each have had an opportunity to be heard on the issuance of a subpoena, along with the defendant. The NYPD and CCRB have acknowledged receipt of the instant motion; the People, having also been served and had time to submit answering papers have not done so and have presumably taken no position on the matter under review.^[FN3] Service upon the subject police officers has not been established, and, as there has been no showing of a waiver or consent to release of records by any of the three individual officers, it would seem the statutorily required opportunity to be heard is absent as pertains to them. Civil Rights Law §50-a(2); compare, Telesford v. Patterson, 27 AD3d 328 (1st Dept. 2006); Dunnigan v. Waverly Police Department, 279 AD2d 833 (3rd Dept.), lv denied, 96 NY2d 710 (2001); but see, Blanco v. The County of Suffolk,Misc 3d, 2006 WL 6349150 (S. Ct. Suff. Co.), aff'd as modified, 51 AD3d 700 (2nd Dept. 2008) (Appellate Division granted plaintiff's trial court motion to compel production of police officers' personnel records for in camera inspection based upon establishment of a good faith factual predicate notwithstanding that lack of notice served as additional basis for denial of such motion by the trial court). Civil Rights Law §50-a(1) expressly confers upon a police officer the power to consent to the release of his or her own confidential records; in the Court's view, this power is concomitant with the right as an interested party to object to such release, which the requirement of notice and opportunity to be heard prescribed by Civil Rights Law §50-a(2) ensures.

Accordingly, it is hereby

ORDERED, that defendant's motion for subpoenas to be so-ordered by the Court is denied.