People v. Herrera

• Decision Date: 05 April 2021
• Docket Number: CR-004539-20NA
• Citation: 142 N.Y.S.3d 791 (Table),71 Misc.3d 1205 (A)
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Carlos HERRERA, Defendant.
• Court: New York District Court

71 Misc.3d 1205 (A)

142 N.Y.S.3d 791 (Table)

The PEOPLE of the State of New York, Plaintiff,

v.Carlos HERRERA, Defendant.

CR-004539-20NA

District Court, City of New York, New York, Nassau County, First District.

Decided on April 5, 2021

For the People: Madeline Singas, Nassau County District Attorney

Attorney for Defendant: Robert J. Brunetti

Andrew M. Engel, J.

Papers Submitted:

Amended Notice Motion 1

Affirmation in Support 2

Affirmation in Opposition 3

Reply Affirmation 4

On November 6, 2020, during a conference of this matter among the People, defense counsel and the court, an issue arose concerning the disciplinary records of the arresting and assisting officer in this matter, Officer Robert Galgano and Officer Daniel Concannon. At the conclusion of that conference, the matter was adjourned to December 17, 2020, for the People to provide the Defendant with the officers’ disciplinary records and for a further conference.

On December 17, 2020, the People provided the Defendant with information regarding civil lawsuits which have been brought against one or both of the officers. At that time, the People indicated that they would not be providing the Defendant with the disciplinary records previously discussed, expressing the opinion that they had no legal obligation to turn them over to defense counsel. The parties were then provided with a motion schedule, so that their respective positions could be reduced to writing and submitted to the court for a determination.

On December 30, 2020, rather than move to compel the People to provide the disciplinary records in issue, the Defendant filed a motion seeking to have the court issue a subpoena duces tecum for the production of the disciplinary records of Officers Galgano and Concannon by the Nassau County Police Department ("NCPD"). This motion was served on the Office of the District Attorney of Nassau County and on the Office of the Nassau County Attorney ("County Attorney"), on behalf of the NCPD, Officer Galgano and Officer Concannon. Neither the People, the NCPD nor Officers Galgano or Concannon opposed the Defendant's motion.

On February 3, 2021 this court issued a Decision and Order granting the Defendant's unopposed motion and issued a subpoena duces tecum directing the NCPD to produce at the Nassau County District Court, on February 19, 2021, the following items:

1. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Police Officer Robert Galgano, Shield No. 2774, and

2. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Police Officer Daniel Concannon, Shield # 308.

Following the issuance of that subpoena, defense counsel advised the court that the shield numbers previously provided to the court by defense counsel were incorrect and asked that the subpoena be corrected to reflect the officers' present status and serial numbers. On February 9, 2021 the court issued the corrected subpoena, directing the NCPD to produce at the Nassau County District Court, on February 19, 2021, the following items:

1. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Det. Robert Galgano, Serial No. 9555, and

2. in accordance with Public Officers Law §§ 86, 87 and 89, all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation of Det. Daniel Concannon, Serial No. 9556.

On or about February 17, 2021, following the service of the subpoena dated February 9, 2021, the County Attorney filed a motion seeking an order, inter alia , quashing the subpoena duces tecum. On that same date, the County Attorney filed an amended set of motion papers. The Defendant has filed opposition to this motion; and, the County Attorney has filed his reply to that opposition. The District Attorney's office has taken no position herein.

The County Attorney seeks an order, quashing the subpoena duces tecum. In the alternative the County Attorney asks the court to conduct an in camera inspection of the subpoenaed records, to limit the scope of production to "substantiated" internal investigations, and to direct the Defendant and his attorney to not publicly share the law enforcement records at issue.

The court would first note that the Defendant's motion seeking the subpoena at issue, the court's issuance of that subpoena and the present motion would have been completely unnecessary had the District Attorney's office and the NCPD complied with the very clear mandates of CPL §§ 245.55(1), 245.20(1)(k)(iv) and 245.20(2) which provide:

CPL § 245.55(1) - The district attorney and the assistant responsible for the case, ..., shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged, including, but not limited to, any evidence or information discoverable under paragraph (k) of subdivision one of section 245.20. (emphasis added)

CPL § 245.20(1)(k)(iv) - 1. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to: (k) 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 ... Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivision one of section 245.10 of this article. (emphasis added)

CPL § 245.20(2) - The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. 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.

The court would further note that CPL § 245.20(7) provides, "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."

There have been a number of published decisions addressing the manner in which the People may comply with their affirmative discovery obligations, when it comes to compliance with CPL § 245.20(1)(k)(iv). Some of these decisions require more of the People, some require less. They all require the People to do something. For example, in People v. Akhlaq , 2021 WL 1047074, 2021 NY Slip Op. 21060 (Sup. Ct. Kings Co. 2021), the court found "providing impeachment information culled from personnel files of testifying police witnesses" to be sufficient. In People v. Suprenant , 2020 WL 5422819, 2020 NY Slip Op. 20227 (City Ct. Glens Falls 2020) the court found "the People's discovery obligation is satisfied where they disclose the existence of the officer's disciplinary records and either produce copies of the records or cause the materials or information to be made available to defense counsel." In People v. Randolph , 69 Misc 3d 770, 132 N.Y.S.3d 726 (Sup. Ct. Suffolk Co. 2020) the court found that "files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery[,]" leaving substantiated and unsubstantiated files which must be produced. In People v. Cooper , 2021 WL 728983, 2021 NY Slip Op. 21039 (County Ct. Erie Co. 2021) the court found that:

the definition of ‘law enforcement disciplinary records’ is a non-exhaustive list referencing ‘any record created in furtherance of a law enforcement disciplinary proceeding’ ( Public Officers Law 86[6], see also , Buffalo Police Benevolent Association, Inc. v. Brown , 69 Misc 3d 998 [Sup Ct, Erie County October 9, 2020] ).... When the prosecution witness is a law enforcement officer that information includes the officer's disciplinary records.

Notwithstanding this range of options initially available to the People, at least until there is some appellate authority addressing these issues, the People herein chose to do nothing, which is far from diligent good faith, reasonable under the circumstances.

Turning to the substance of this motion, contrary to the position taken by the County Attorney, the subpoena is neither "overbroad" nor "nebulous." (Bergstrom Affirmation 2/17/21, ¶ 8) As indicated hereinabove, the subpoena requires, "in accordance with Public Officers Law §§ 86, 87 and 89," the production of "all disciplinary records, civilian complaints, investigations and Internal Affairs Bureau records pertaining to any investigation[s] of Det. Galgano [and Det. Concannon.]"

Public Officers Law § 86(4) provides that:

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