District Court of Suffolk County, First District, July 11, 2023

Raymond A. Tierney, District Attorney, Central Islip, for the People.

The Legal Aid Society, Central Islip, for defendant.

The court has reviewed the memorandums of law and exhibits submitted by the People and defense counsel and considered the oral arguments with respect to what extent and what type of Internal Affairs Bureau reports (hereafter IAB files) are subject to disclosure pursuant to CPL 245.20 (1) (k) (iv).

Prior to commencing a pretrial Wade hearing, the People made various statements along with marking court exhibits. Specifically, the People stated that Police Officer Joel Lopez had no IAB files classified as "substantiated" or "unsubstantiated" and indicated they were relying on People v Randolph (69 Misc 3d 770 [Sup Ct, Suffolk County 2020]). The defendant then made an [*2]inquiry regarding whether there were any IAB files marked either "exonerated" or "unfounded" citing People v Portillo (73 Misc 3d 216 [Sup Ct, Suffolk County 2021]). The People had responded that they had met their obligations under Randolph, which required only substantiated and unsubstantiated files must be turned over.

To the extent the defendant wanted to challenge the certificate of compliance since they were given no information regarding exonerated or unfounded files, the court denied the application because the People had relied in good faith on Randolph. The defendant responded by asserting that not providing information for any exonerated or unfounded cases would effectively allow the People to assume the role of a "gatekeeper" respecting discoverable material and that effect is contrary to the presumption of openness established by the new discovery statutes in general, and CPL 245.20 (1) (k) specifically.

The court directed that testimony would proceed but that the hearing would be held open to allow each party to submit memorandums of law and provide oral arguments to further explain their respective positions regarding any exonerated or unfounded files.{**80 Misc 3d at 508}

In the memorandums of law and subsequent oral arguments, both parties accepted the definition of the four categories of IAB cases as presented in the submitted Suffolk County Police Department Rules and Procedures. A "substantiated" case is one where the facts clearly support the allegations made. An "unsubstantiated" case is when the allegations cannot be resolved because sufficient evidence is not available. An "exonerated" case is when an act was legal, proper and necessary under the circumstances. An "unfounded" case is one when the evidence establishes that the act did not occur.

In addressing the exonerated and unfounded cases, the People emphasized that CPL 245.20 (1) (k) essentially codified the evidentiary standards existing in the case law prior to the 2020 discovery amendments respecting the Brady/Giglio standards, and cited Randolph and People v Douglas (Suffolk County Ct, 2021, case No. 71117-21) in which those standards were reiterated thereby affirming that there must be a "good-faith" belief that the sought after files contain information favorable to the defendant and, as per the statute, that "tends" to thereby impeach the police witness.

With respect to the evidentiary standards governing impeachment by inquiring of specific instances of prior misconduct, the precedent established in People v Smith (27 NY3d 652 [2016]) remains unchanged by the 2020 amendments to CPL article 240. Specifically, the Court held that

"witnesses—and indeed, even a testifying defendant—may be cross-examined on 'prior specific criminal, vicious or immoral conduct,' provided that 'the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility' " and "a good faith basis for inquiring" is established (id. at 660, 662).

In People v Coleman (56 NY2d 269 [1982]) the Court of Appeals held that whether the specific instance of conduct in issue logically and reasonably relates to the witness's credibility is committed to the sound discretion of the trial court.

Further, the Court of Appeals has also held that prior acts of misconduct cannot be proved by resorting to extrinsic evidence. Specifically in Badr v Hogan (75 NY2d 629 [1990]) the Court held that

"[u]nlike material facts in dispute, or matters such as a witness's bias, hostility, or impaired ability to perceive which may be proved independently for{**80 Misc 3d at 509} impeachment, plaintiff's alleged prior misconduct had no direct bearing on any issue in the case other than credibility. If proven, it would show only that plaintiff had acted deceitfully on a prior unrelated occasion. The matter was, therefore, collateral and, under the settled rule, could not be pursued by the cross-examiner with extrinsic evidence to refute plaintiff's denial" (id. at 635 [citation omitted]).

The principles established and reaffirmed by Smith, Coleman, and Hogan were codified in Guide to New York Evidence article 6, specifically rule 6.17, Impeachment by Instances of Misconduct (https://www.nycourts.gov/JUDGES/evidence/6-WITNESSES/6.17_IMPEACHMENT_BY_MISCONDUCT.pdf). That rule reads as follows:

"(1) Subject to paragraph (c),

"(a) the credibility of a witness may be impeached on cross-examination by asking the witness about prior specific criminal, vicious, or immoral conduct of the witness; and

"(b) the credibility of a witness who gives evidence of a person's character also may be cross-examined about whether the witness has heard of prior specific criminal, vicious, or immoral conduct of the witness who was the subject of the character testimony.

"(c) Cross-examination authorized by paragraphs (a) and (b) is permissible only if:

"(i) the nature of the conduct or the circumstances in which it occurred bear logically and reasonably on the witness's credibility;

"(ii) the question has a good faith basis;

"(iii) the question does not relate to conduct underlying a criminal charge of which the witness was acquitted; and

"(iv) in a criminal case, the question about prior criminal, vicious, or immoral conduct of the defendant was authorized by the court prior to trial.

"(2) Except for the admission of a criminal conviction pursuant to rule 6.19, extrinsic evidence is not admissible to prove prior criminal, vicious, or immoral conduct.

"(3) A defendant in a criminal proceeding does not, by the act of testifying, waive the privilege against self-incrimination with respect to questions concerning{**80 Misc 3d at 510} pending unrelated criminal charges.

"(4) When a witness is impeached pursuant to subdivision one, the party who offered that witness may in rebuttal present evidence of that witness's character for truthfulness pursuant to rule 6.23 (2)."

The defendant acknowledges the evidentiary standards established in the Brady/Giglio line of cases remained in effect, but submitted those standards should apply to exonerated and unfounded cases as well. Specifically, defendant stated that the "good-faith" standard can extend to exonerated and unfounded cases because those files "may" contain information that "tends" to impeach and that determination can only be made by turning those categories of files over.

In support of this position, the defendant included as exhibits to their memorandum of law reports that were studies detailing various instances, in other jurisdictions (Pittsburgh, Chicago), where IAB cases were improperly designated as either unfounded or exonerated by using unsound methods to get to their conclusions, thus submitting this demonstrates the need for the People to provide exonerated and unfounded cases as well as the substantiated and unsubstantiated files. In essence, the defendant is asking the court to permit a defendant to collaterally attack an administrative finding made in a context having absolutely nothing to do with the issues presented in this criminal case. To allow a defendant to place in issue the [*3]findings of IAB reports classified as exonerated or unfounded and then attempt to challenge the efficacy of these findings would serve to distract a jury from the central issues regarding the substantive charge and, in effect, create a trial within a trial. The very reason extrinsic evidence is not permitted.

The court is not convinced that a defendant's right to be given information that is deemed favorable, in the context of being used to discredit a testifying police officer, has been extended by CPL 245.20 (1) (k) to include information that can only be classified as extrinsic within the context of a criminal trial. Nor does the court believe CPL 245.20 (1) (k) changes the clearly established principles of probativeness and good-faith requirements as a basis for impeachment.

The defendant further argued that access to exonerated and unfounded cases is necessary to learn the total number of complaints that have been made against the subject police officer{**80 Misc 3d at 511} or any other police officer involved in the case, since the number of complaints would affect the credibility of the officer's testimony in that case. Taken on its face, defendant's position is essentially asking the court to allow a jury to hear propensity evidence which is not permitted during a criminal trial.

Indeed, the rule against propensity evidence has long ago been established by the Court of Appeals case People v Molineux (168 NY 264 [1901]). In People v Morris (21 NY3d 588 [2013]), the Court held that "evidence of uncharged crimes is inadmissible where its purpose is only to show a defendant's bad character or propensity towards crime" (id. at 594). In Matter of Brandon (55 NY2d 206 [1982]), the Court held "[a] general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion" (id. at 210-211).

These principles, insofar as they relate to IAB files, are belied by the very nature of the classification unfounded and exonerated. An unfounded IAB case has concluded, based on the submitted Suffolk County Police Department Rules and Procedures, that the complaint of conduct by a particular officer never occurred since the investigator could find no evidence supporting the allegation. Thus, the only possible purpose for permitting defendant to inquire about these claims would be propensity. Further, any attempts to challenge these investigatory findings would bring the criminal trial in issue back into the realm of extrinsic evidence.

With respect to exonerated IAB files, the court is mindful that the finding is made in an administrative setting concerned with evaluating conduct within the context of the Rules and Procedures. However, the Internal Affairs investigation has, pursuant to the Rules and Procedures, the option to refer complaints to the District Attorney's Office for the purpose of a criminal investigation. Thus, those investigations involve a widespread scope of analysis. As such, any challenge to an exonerated finding in the context of a criminal trial would likewise bring these cases into the context of extrinsic evidence.

Thus, based on the memorandums of law and the oral arguments presented by the parties, the court sees no reason to depart from the standards governing the disclosure of IAB files established in Randolph and Douglas and holds that the People{**80 Misc 3d at 512} are not required to produce complete IAB files for Police Officer Joel Lopez or any other potential police officer witness that may have been classified as exonerated or unfounded. The court concurs with the finding in those cases that inclusion of the word "tends" in CPL 245.20 (1) (k), and the fact that [*4]the evidentiary standards established remain in effect and untouched by the enactment of CPL 245.20 (1) (k), demonstrates there is still a requirement that a "good-faith" basis is established prior to compelling production of exonerated or unfounded cases.

Alternatively, defendant argued that the People should at least turn over information identifying the number of files for the subject police officer that have been classified as exonerated or unfounded. Having made that argument during the conference setting the briefing schedule for the memorandums of law, the court directed the People submit a document generated by the Suffolk County Police Department entitled "IAB Summary Report" on an unrelated case.

The People complied with the direction, and the document submitted provides a list of all complaints made about a particular officer, a summary of each of the complaints, the source of the complaint, and the IAB disposition of each of the listed cases.

While the court finds no bad faith on the part of the People in their discovery response in the matter at bar, the defense has demonstrated enough cause to require the summary reports (Internal Affairs officer activity report) from IAB to be turned over to the defense. Such reports contain a synopsis of all cases and their dispositions, including cases found to be unfounded or exonerated. The court is mindful that IAB's conclusions that an incident deemed unfounded never occurred, and those exonerated concluded the incident happened but the officer was justified in the actions taken. However, although holding that the People do not have to turn over the complete files as held above, the court finds merit in the position that the defendant should at least be given information regarding whether such files exist. Once the summary reports of IAB are turned over to the defense, they are then free to attempt to raise a good-faith basis to question the officer, about unfounded or exonerated cases, provided those arguments are not based on propensity grounds or do not raise extrinsic evidence issues (see CPL 245.20 [1] [k]).

Thus defendant's challenge to the People's certificate of compliance and statement of readiness being invalid and illusory{**80 Misc 3d at 513} is without merit. In this regard, the People turned over discoverable material pursuant to controlling statutes and reliance on current case law, while exercising due diligence and reasonableness in doing so (see CPL 245.50, 30.30 [5]; Randolph; Douglas).