The defendant is charged with one count each of driving while intoxicated (Vehicle and Traffic Law §1192[3]) and driving in the opposite direction of a one-way roadway (Vehicle and Traffic Law §1127[a]). The arresting officer is Police Officer Michael Whooley.

Before the commencement of the Huntley/Refusal/Dunaway hearing on September 2, 2015, the People informed this court and defense counsel, that the New York City Civilian Complaint Review Board (hereinafter "CCRB") had found that Police Officer Whooley had used excessive force in an arrest of another individual and CCRB had found two other reports to be [*2]unsubstantiated. Defense counsel was interested in obtaining further information concerning the CCRB cases and the prosecutor agreed to subpoena the materials. Since both parties were ready to proceed with the hearing, this court granted the defendant's request to reopen the hearing upon receipt of these materials.

During cross examination, Police Officer Whooley admitted he a complaint of excessive force had been substantiated by the CCRB and the case was pending before the Police Department. Police Officer Whooley stated: the report involved an arrest made on July 5, 2014; he was not the arresting officer; did not have an answer whether anyone was injured; and could not recall whether hitting or pushing was alleged in the complaint.

On or about September 30, 2015, the CCRB moved to quash the prosecutor's subpoena for a copy of their file involving Police Officer Whooley and Mr. Kevin Singh and for a protective order as to the confidential work product generated by their investigation.

On or about November 5, 2015, the defendant filed a motion opposing the motion to quash. In support of his motion, the defendant contends he has moved to suppress his arrest for driving while intoxicated because Police Officer Whooley had no probable cause to arrest him in that before his arrest, the defendant did not commit any crimes or violate any laws. The defendant now moves pursuant to Civil Rights Law §50-a for the CCRB materials which he asserts "will show a pattern of misconduct." (Affirmation from Defense Counsel dated November 5, 2015 at ¶ 11) The defendant urges this court to conduct an in camera of any final reports and any audio-video recordings concerning CCRB's investigations as to this case or the case which resulted the allegations of misconduct by Police Officer Whooley were substantiated. The defendant relies on People v Wesley, Sup Ct, New York County, May 7, 2015, Jackson, J., indictment No. 4362-14 and People v Calderon, 48 Misc 3d 1226(A)(Sup Ct, New York 2015) for support of his request. Lastly, the defendant contends that this evidence is relevant in establishing a pattern between this case and others, material to the question of his guilt or innocence and may be the proper subject of impeachment to show his bias and thus attack his credibility.

On November 11, 2015, CCRB filed a motion arguing that the materials in which the defendant is requesting are irrelevant and unrelated to his case. CCRB contends that the defendant merely concluded since Police Officer Whooley has been the subject of three complaints one of which has been substantiated, a pattern of misconduct by the police officer has been established. CCRB notes that the case law cited by the defendant are distinguishable in that no common link between the incident and the CCRB files were presented. CCRB argues that the defendant is conducting a fishing expedition in an attempt to gather potential impeachment material and thereby contravening the well settled principles in this area.

Civil Rights Law §50-a (1-3) in relevant provides as follows:

All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . shall be considered confidential and not subject to inspection or review with the express written consent of such police officer . . . except as may be mandated by lawful court order.

No [court] order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

[The judge] shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.

To strike a balance between the confidential nature of the documents and the defendant's right to confront and cross examine witnesses against her, the party seeking the information must set forth "some factual predicate which would make it reasonably likely" that the information sought will establish the unreliability of either the criminal charges or of the complainant. (People v Gissendanner, 48 NY2d 543, 550 [1979]; see also People v. Bagley, 279 AD2d 426 [1st Dept ], lv denied, 96 NY2d 711 [2001].)

Thus, the defendant is entitled to information that is "relevant and material to the determination of guilt or innocence, as, for example, when a request for access is directed toward revealing specific biases, prejudices or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand' (citing to Alaska v Davis, 415 US 308,316 [1974]), or when it involves other information which, if known to the trier of fact, could very well affect the outcome of the trial (citations omitted)." (People v Gissendaner, 48 NY2d at 548.) The defendant however would not be entitled to information that is "motivated by nothing more than impeachment of witnesses' general credibility." (Id.)

In this case, the defendant argues that a complaint of excessive force which was substantiated by the CCRB involving an arrest that occurred after the defendant's arrest coupled with allegations that Police Officer Whooley did not possess probable cause to believe the defendant had been drinking and driving tend to establish that Police Officer Whooley engaged in a pattern of misconduct and thus he should be entitled to the police officer's CCRB file.

In support of his argument, the defendant relies on People v Calderon, 48 Misc 3d 1226(A)(Sup Ct, New York County 2015) and People v Wesley, Sup Ct, New York County, May 7, 2015, Jackson, J., indictment No. 4362-14. In Wesley ^[FN1] , the defendant was an African American female accused of several charges including shop lifting. The defendant there relied on a newspaper article in which her arresting officer had been prosecuted for racial profiling in another shop lifting case. The court ruled that the prior case may be relevant to defendant's prosecution and directed CCRB to turn over for an in camera review their files of the arresting officer concerning the her arrest and the case in which the allegations were substantiated. In Calderon, the defendant was charged with criminal possession of a controlled substance in the third degree and requested the CCRB files of the detective who would be a principal witness against the defendant. The defendant argued that the detective was the subject of a federal civil rights case in which he was accused of fabricating testimony as to another individual arrested under similar circumstances as to the defendant. The court granted the defendant's request and directed CCRB to turn over for an in camera review their files of the arresting officer concerning his arrest and the arrest of the individual who brought the federal lawsuit against the detective.

It is clear a common thread connects the current charges pending in those cases and the charges extant within the CCRB files. Unlike those cases, in this case, the defendant appears to [*3]be stretching a complaint of excessive force to bolster a conclusory non-specific argument that Police Officer Whooley lacked probable cause for his arrest. This court notes in defendant's written submissions or at oral argument, the defendant has not alleged that Police Officer Whooley used any force excessive or otherwise before or after his arrest. This court finds it preposterous to believe that a substantiated report of excessive force during an arrest that occurred nearly two months after defendant's arrest means that Police Officer Whooley has falsely sworn as to his observations of the defendant on May 15, 2014. This court finds that defense counsel is hopeful that Police Officer Whooley's CCRB file will contain potential impeachment during cross examination on general credibility grounds.

For these reasons, this court denies the defendant's request to direct CCRB to turn over their files concerning Police Officer Whooley and his arrest or the arrest of Kevin Singh, the alleged victim of excessive force by Police Officer Whooley for an in camera inspection. (see People v Alexander, 20 Misc 3d 1109[A][Sup Ct, New York 2008].)

This constitutes the decision and order of the court.

The Clerk of the court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.