Defendants Dixon and Hyland are charged in identical accusatory instruments, logged under separate dockets, with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03) and Unlawful Possession of Marihuana (Penal Law § 221.05). The charges are based on evidence recovered pursuant to a search warrant executed at 604 Georgia Avenue, Basement Apartment, Brooklyn, New York. Upon motions by both defendants controverting the search warrant and after a Darden hearing, this Court found the warrant to have been properly issued.

The two defendants reside together at the address where they were arrested together. Although this Court has issued decisions which — like this one — bear both captions, the two cases have not been consolidated for trial. Each defendant has now moved separately for a Subpoena Duces Tecum to obtain certain personnel and disciplinary records pertaining to two NYPD officers ("the officers"): Detective Emrah Ates, who was the CI's handler, the affiant on the search warrant application, the arresting officer, and the deponent on the accusatory instrument; and Detective Evagelos Dimitrakakis, who is alleged to have been present at the execution of the search warrant and who is listed as having vouchered the drugs at issue in this case.

At the outset, Civil Rights Law § 50-a provides that police officers' disciplinary records "shall be considered confidential and not subject to inspection or review" except upon express written consent of the officer, or as mandated by lawful court order (50-a [1]). The statute further provides that "prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard."

In this matter, the subject police officers, whose records are sought, the Civilian Complaint Review Board and the New York City Police Department, where personnel and other related files may be deposited, are all interested parties. Defendant DIXON's motion is addressed only to the New York City Police Department — not to any of the others — and this defendant has provided no proof of service to the NYPD. The court file confirms service of defendant DIXON's motion only upon the District Attorney's office. There has been no response filed to DIXON's motion.

Defendant HYLAND's motion is addressed to all the interested parties, but bears proof of service only on the District Attorney's office and the CCRB. The Office of Lawrence Byrne, Deputy Commissioner, Legal Affairs for the NYPD, has acknowledged receipt of HYLAND's motion, and appears in opposition to the motion on behalf of the New York City Police Department. There is no proof of service of any kind on the individual officers whose records are at issue. The CCRB has filed an opposition and notice of cross motion, with proof of service by mail upon all parties, including the individual officers. Neither officer has submitted any response to HYLAND's motion. There has been no response by any party to the CCRB's cross-motion.

At the last court appearance on the two matters, it was noted by another Judge of this court that DIXON adopted HYLAND's motion, and that the CCRB adopted their response in the HYLAND case for purposes of DIXON's motion. The NYPD was granted additional time, apparently to respond to both defendants' motions. Thus, there is sufficient record before this Court to conclude that the NYPD and the CCRB have accepted service of both defendants' motions.

However, there is nothing in the record before this Court to indicate that either Detective Ates or Detective Dimitrakakis has been served with either defendant's motion. Each of the officers whose confidential records are being sought is an "interested party" who must be given an opportunity to be heard by the court upon an application for disclosure of such records under Civil Rights Law § 50-a (see Telesford v Patterson, 27 AD3d 328, 330 [1st Dept 2006]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834-835 [3rd Dept 2001], lv denied, 96 NY2d 710; People v Cook, 51 Misc 3d 188 [Sup Ct Kings County 2015]). Notice to the NYPD does not constitute notice to the individual officers, as "there is no unity of interest between them and, in fact, their interests may very well be divergent" (Telesford v Patterson, 27 AD3d at 330). Although strict rules of service are not necessarily applicable to these motions (Frisillo v State, 185 AD2d 616 [4th Dept 1992]), in this Court's view, an affidavit of service attached to the Police Department's opposition to defendants' motions indicating that such opposition was mailed to the two detectives is not proper notice to the officers of defendants' application for disclosure of their records (see People v Cintron, 50 Misc 3d 650 [Crim Ct Kings County 2015]).

Because two necessary parties have been left out of these proceedings, the application for disclosure of the records must be denied.

Even if the two officers had been properly joined in this proceeding, this Court finds that the motions are deniable on the merits.

At the outset, it is worth noting what records defendants seek. Defendant DIXON's motion is directed only to the NYPD, and seeks "disciplinary records" of the two detectives. Defendant HYLAND's motion is more broad, seeking:

"Any and all records contained in personnel files or otherwise, indicating prior or current internal and civilian complaints, investigations, or reports in which allegations of corruption, threat, theft, falsehoods (in whatever form), illegal arrests and/or searches, fabrication of charges and/or evidence, use of excessive deadly or non-lethal force, dishonesty and improper tactics such as conduct unbecoming an officer, neglect of duty, or false arrest."

There is no question that the NYPD is a "police agency" within the meaning of Civil Rights Law § 50-a, and the CCRB, an agency of the City of New York, does not dispute that it, too, is governed by that provision.

To warrant the issuance of a subpoena for police personnel and CCRB records, the defendant must put forth a good faith factual predicate making it reasonably likely that "the record actually contains information that carries a potential for establishing the unreliability of either the . . . charge or of a witness upon whose testimony it depends" (People v Gissendanner, 48 NY2d 543, 550 [1979]). Specifically, the applicant must demonstrate, by a "clear record," that the information in the records sought "may provide a motive to falsify," or that the witnesses' prior acts of misconduct believed to be within such records "bear peculiar relevance to the circumstances of defendant's case" (id. at 549).

The defendant must set forth "in good faith . . . some factual predicate which would make it reasonably likely" that the file contents would "directly bear on the hard issue of guilt or innocence" and show that "he would not [be] merely conduct[ing] a fishing expedition to gain information to impeach the officer's general credibility" (Gissendanner at 550). Evidence tending to show a witness's specific bias, hostility or motive to lie are directly probative of credibility and not collateral (see People v Taylor, 40 AD3d 782 [2d Dept 2007] lv denied 9 NY3d 870 [2007]); People v Ocampo, 28 AD3d 684 [2d Dept 2006] lv denied 11 NY3d 792 [2008]). However, a search for collateral materials to impeach a police officer's account of a defendant's conduct constitutes a "fishing expedition" and is insufficient to overcome the protections provided by Civil Rights Law § 50-a (see People v Cedano, 4 Misc 3d 134[A] [2d Dept 2004]).

This Court recognizes that in order for Civil Rights Law § 50-a to be of utility the "clear showing of fact" standard must be interpreted liberally, and that in the majority of cases there will be no way for the defense to know what the personnel file will contain (See People v Morales, 97 Misc 2d 733 [Crim Ct, NY County 1979]). The Court also recognizes that motions pursuant to Civil Rights Law § 50-a are often the most direct and expedient method for the defense to obtain an in camera review of a police officer's personnel records and disciplinary history. Even in the event that the personnel files and disciplinary histories are produced for in camera review, it will still be for the Court to determine what materials, if any, should be produced to the defense as relevant and material to the instant criminal action (Civil Rights Law §50-a [3]).

Nevertheless, this Court finds that defendants' present motions have failed to establish a factual predicate necessary for an in camera review of either Detective Ates's or Detective Dimitrakakis's personnel files. Defendant DIXON has described, and defendant HYLAND has documented a litany of allegations that have been made in federal lawsuits naming each of the two officers following criminal cases — excessive force, planting of evidence, false and baseless arrests, and illegal searches. The Court has been made aware of eight civil cases in which Detective Ates is named, three of which have settled; and nine others that named Detective Dimitrikakis, seven of which have settled. The existence of a civil action against a police officer is not sufficient by itself to create a factual basis for in camera review of said police officer's personnel records (See People v Andrew, 54 AD3d 618 [1st Dept 2008] lv denied 11 NY3d 895 [2008]). Likewise, the settlement of some of the older suits provides no record of the particular officer's misconduct because the settlement stipulations expressly state that the parties involved resolved the issues without admitting any fault or liability (HYLAND Mtn. Exs. B-K, N-O, Settlement Agreements). And, even assuming such settlements might be indicative of wrongdoing by some officers in some cases, it has not been demonstrated that such wrongdoing involved either of these detectives who, in each lawsuit, are named as defendants along with between three and ten other named officers and up to ten additional unnamed "John/Jane Doe" officers.

Furthermore, neither defendant has provided any sworn allegations that either detective engaged in misconduct in the case before this Court. Defendant DIXON merely "argues" that "the police" "falsely accused him of possessing seven glassines of heroin and a zip-lock bag containing marijuana and falsely arrested him on those grounds" (DIXON Mtn. p. 5); and that "Mr. Dixon did not possess narcotics on May 15, 2015" (DIXON Mtn. p. 10). Even if sworn, neither of these assertions amounts to a particular allegation against either of the two detectives who may well, as in each of the cited federal cases, have been accompanied by other officers during the execution of the search warrant. Defendant HYLAND's general, albeit "adamant," denial of the allegations against her likewise does not amount to a specific allegation of misconduct by either officer to which this Court might compare the acts of misconduct alleged in those federal lawsuits and find similarity. There is no suggestion that excessive force was used in this case. There is no indication that either defendant made any complaint to either IAB or the CCRB regarding the conduct of either officer in this case. There is no claim of any past dealings with either detective, such as might render relevant a pattern of retaliatory conduct by the officers. Without a connection to this particular case, even a finding of some sort of misconduct in another matter would only constitute the sort of general impeachment material of which disclosure is barred by statutory privilege (see Matter of Crowe v Kelly, 38 AD3d 435 [1st Dept 2007]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 835 [3d Dept 2001]).

In all, neither defendant has made the "clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a [2]; People v Landa, 28 AD3d 582 [2d Dept 2006]; Lawrence v New York, 118 AD2d 758 [2d Dept 1986]).

WHEREFORE, and for the reasons stated above, defendant DIXON's application for a subpoena duces tecum is hereby DENIED; and defendant HYLAND's application for a subpoena duces tecum is hereby DENIED.

This constitutes the Decision and Order of the Court.