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New York Criminal Judge denies Defendant Police Misconduct Records

Accused of a crime? Injured? Were your rights violated? Hire an attorney who does more than consult a checklist: Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

New York Police misconduct records, with the repeal of Civil Rights Law Section 50-a, should allow a criminal defendant (New York Criminal Defense Attorney) to obtain such records when accused of a crime, if not under the statutory Criminal Procedure Law, then perhaps under the Fifth Amendment, Compulsory Process Clause. Putting Freedom of Information Law aside, FOIL, as it is available to the public generally. New York Criminal Defense Attorneys and those accused of crime are at a pivotal moment in terms of whether the repeal of Civil Rights Law Section 50-a will actually have any impact on police misconduct whatsoever. The case is People v. Randolph, 2020 NY Slip Op 20231 (Suff. Sup. Ct. 2020), decided by the Honorable Mark D. Cohen (Suffolk County) which endorses (and therefore shields production of), among other things, the unilateral police designation as to whether Suffolk County Police Department misconduct is founded or unfounded by the police themselves.

Criminal Defendants must be afforded discovery, statutorily and constitutionally. Of particular import here is the mandate that the prosecution shall not be deemed ready for trial for purposes of Criminal Procedure Law (CPL) § 30.30 until it has filed a proper certificate absent an individualized finding of exceptional circumstances. CPL § 245.20(2) requires that the prosecutor take affirmative steps to cause records to be made available for discovery where such records exist but are not within their control. In People v. Randolph, the defense attorney challenges this finding of readiness, asking where the police misconduct records are in this case under the New York Criminal Procedure Law. The law relevant to this case is as follows:

Pursuant to CPL 245.20(1)(k), as part of automatic initial discovery, the People must provide "All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to: ... (iv) impeach the credibility of a testifying prosecution witness..." The People claim this the language is limited by CPL 245.20(2) ["For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution"]. Initially, it is noted that CPL 245.20(1) provides that discovery material includes all items and information that "are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control..." Moreover, the word "tends" should limit the disclosure. The question presented for the Court is considered against the background of the recent repeal of Civil Rights Law §50-a effective June 12, 2020, which eliminated any claim of confidentiality in IAB files. Cf. Uniformed Fire Officers Association, et al. v. DeBlasio, 2020 WL 4391302 [S.D.NY, July 31, 2020], appeal filed ___ F.3d ___ [ 2nd Cir., Aug. 24, 2020]. The legislative history of the repeal indicates that the original passage of Civil Rights Law §50-a was enacted "in order to prevent criminal defense attorneys from using these records in cross-examinations of police witnesses during criminal prosecutions [and] ... narrowly interpreted [to] prevent access to both the records of the disciplinary proceedings themselves and the recommendations or outcomes of those proceedings." 2020 Sess. Law News of NY Legis. Memo Ch. 96. Furthermore, the decision in this case must respect the legislative intent that there "shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20, of this article." CPL 245.20(7).

People v. Randolph, 2020 NY Slip Op 20231 (Suff. Sup. Ct. 2020) (external quotation marks omitted and internal citations preserved).

Even if such records are available and not self-designated as exonerated, unfounded, etc., however, criminal Defendants/Criminal Defense Attorneys should note that the writing is on the wall: "Absent an application for a protective order, the People are obligated to make this initial, mandatory disclosure as soon as practicable, but not later than fifteen days after the arraignment on an indictment (subject to an additional thirty day extension that is available under certain tightly limited circumstances)" People v. DeMILIO, 2020 N.Y. Slip Op 20003 (County Ct. 2020). As noted above, this must include records evidencing police misconduct. Such records are denied here because of the internal police designation that such records are unfounded or the officer was exonerated.

Why, in a county where the Chief of Police himself was Federally Prosecuted, should the records of the Suffolk County Police Department Internal Affairs Bureau be shielded? The process is as follows: a complaint is made and the police department, yes the same folks who are accused of misconduct in Suffolk County, New York, make an internal determination. This internal determination is not independent but created of the Suffolk County Police Department itself, the Internal Affairs Bureau. The Court finds that "in cases involving exonerated and unfounded allegations, there is no good faith basis for cross examination by the defendant's counsel and as such it is not evidence or information that tends to or has an inclination to impeach a police witness." People v. Randolph, 2020 NY Slip Op 20231 (Suff. Sup. Ct. 2020). Judge Cohen says no but this attorney asks why? Why should the prosecutor, in any instance, be able to justify withholding evidence on an internal conclusion and not an inspection by defendant if not the court?

The importance of this is that the People are deemed "ready for trial" and that the Defendant must try the case without this evidence - something for which the New York Legislator made law time and time again to avoid. Of course the court does not rule out Freedom of Information Law (FOIL) - something that, in theory, should take five business days but, in reality, may require a lawsuit to obtain compliance from the Suffolk County Police Department. Court review of such FOIL proceeding can languish for months if not years. This attorney stills has cases pending appeal from over three years ago out of Suffolk County, well before the repeal of Civil Rights Law Section 50-a.

New York Criminal Defendants denied evidence can result in wrongful convictions. The Court in Randolph holds that "Since the People have been acting in good faith and have provide discovery in harmony with their understanding of the requirements, at this juncture there is no basis to strike the certificate of compliance or impose other sanctions.[3] The People must provide any available IAB files, in any form, involving any witness that they intend in good faith to call at a hearing and/or trial to the defendant involving substantiated or unsubstantiated allegations on or before September 22, 2020."

Judge Cohen's decision is not without good reason, citing precedent in adjoining counties and evidence law. See People v. Knight, ___ Misc 3d ___, 2020 WL 5224191 (Sup. Ct. Kings Cty, September 2, 20202); People v. Lustig, 68 Misc 3d 234 (Sup. Ct. Queens Cty, April 28, 2020. The decision, however, may not consider that both the former Suffolk County Police Chief and Suffolk County District Attorney were federally prosecuted and, perhaps, their internal mechanisms did not afford for a fair review process in police misconduct complaints within Suffolk County, New York. In deferring a criminal defense attorney to the long and arduous process under New York's Freedom of Information Law, there may not be a consideration of the constitutional right of compulsory process, a decision for another day.

Accused of a crime? Injured? Were your rights violated? Hire an attorney who does more than consult a discovery checklist: Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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