People v. Norman

• Citation: 350 N.Y.S.2d 52,76 Misc.2d 644
• Parties: The PEOPLE of the State of New York v. Phillip NORMAN et al., Defendants.
• Decision Date: 23 November 1973
• Court: New York Supreme Court

Page 52

350 N.Y.S.2d 52

76 Misc.2d 644

The PEOPLE of the State of New York v. Phillip NORMAN et al., Defendants.

Supreme Court, Special Narcotics, New York County, Part A.

Nov. 23, 1973.

Luis M. Neco, Legal Div., Police Dept., New York City (Paul L. Brennan, New York City, of counsel for the Motion).

William T. Gallagher, Legal Aid Society, New York City (Peter Sherman, Charles Adler, New York City, of counsel in Opposition).

ABRAHAM I. KALINA, Justice:

This is a motion to quash subpoenas served on the Police Department of the City of New York requiring the production of 'personnel records' of police officers who defendants allege will be called by the People in each of the narcotic prosecutions in which they are named as a defendant.

In oral arguments before the Court, the defendants' counsel stated that the sole purpose for seeking the personnel folders of these officers was to ascertain whether information contained in the folders might reveal something in the officers' pasts which may form the basis for impeaching the credibility of the officers on cross-examination. Counsel for the defendants urged upon the Court the necessity for such information because in a narcotic prosecution, the testimony of police officers is likely to be the principal, if not the sole, evidence on which the jury or the Court must determine the guilt or innocence of the defendants. It is this argued that under such circumstances, the truth and veracity of the testifying police officer becomes a most significant issue, the determination of which will result in the defendants being found guilty or not guilty.

Defense counsel urges the Court to adopt the conclusion reached by my learned colleague, Mr. Justice Arnold Fein, in the case of People v. Eugene Sumpter, 75 Misc.2d 55, 347 N.Y.S.2d 670. In Sumpter, supra, the Court denied the motion to quash the subpoena, but directed the Police Department to produce the personnel folder to the trial judge sealed, for his examination, In camera, and determination whether any information contained in such records should be made available to defense counsel. In the case of People v. Fraiser, 75 Misc.2d 756, 348 N.Y.S.2d 529 Judge Gibbons of the Nassau County Court reached a contrary conclusion. In Fraiser, supra, the Court denied an application for a subpoena duces tecum for the police department personnel files of police officers.

Justice Fein's decision and defense counsel's argument can be reduced to four principal areas:

First: that the right of a defendant in a criminal prosecution to confront witnesses is fundamental, and the attempt to discredit the witness by impeaching his credibility should not be restricted except in the sound discretion of the trial judge. (People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529; People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. den., 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Alamo, 23 N.Y.2d 630, 298 N.Y.S.2d 681, 246 N.E.2d 496; People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637; Langley v. Wadsworth, 99 N.Y. 61, 1 N.E. 106.)

Second: in limiting this right of cross-examination in his discretion, the trial judge must require the cross-examiner to make a good faith showing as a predicate to such inquiry, and that in the absence of access to the personnel folders, defense counsel cannot show the required good faith (People v. Sorge; People v. Alamo, supra).

Third: that in most narcotic prosecutions, the evidence against the defendant will largely consist of testimony of police officers, and defense evidence, if any, will solely be the testimony of the defendant.

Fourth: that where a police officer such as a policeman is called as a witness, in the performance of his public duty, there is a duty on the prosecution to make available to the Court any information in its possession or in the Police Department's possession which might go to the issue of the defendant's guilt, including evidence affecting the credibility of such officer.

Judge Gibbons' decision can be reduced to four principal areas:

First: That 'documents are not subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves.' (People ex rel. Lemon v. Supreme Court, 245 N.Y. 24, 29, 156 N.E. 84, 85).

Second: 'That inasmuch as evidence relating to the misdeeds of a witness for the purpose of impeaching his credibility concerns itself with matters collateral to the main issues of the case, a limitation is imposed upon such evidence to the extent that it may only be obtained by interrogation of the witness whose answers are binding on the examiner and which may not be contradicted by other extrinsic evidence.' (75 Misc.2d 756, 758, 348 N.Y.S.2d 529, 533).

Third: That the 'rule is clear that while a witness's testimony regarding collateral matters may not be refuted by the calling of other witnesses or by the production of extrinsic evidence * * * there is no prohibition against examining the witness himself further on the chance that he may change his testimony or his answer', 75 Misc.2d 756, 759, 348 N.Y.S.2d 529, 534, citing People v. Perry, 277 N.Y. 460, 14 N.E.2d 793; People v. Malkin, 250 N.Y. 185, 164 N.E. 900; People v. Freeman, 203 N.Y. 267, 96 N.E. 413.

Fourth: That evidence concerning the credibility of a witness does not meet the test spelled out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 because we are dealing here with impeaching evidence of a truly collateral matter, and not evidence which would bear materially on the question of the defendant's guilt of punishment.

Other than Mr. Justice Fein's decision in People v. Sumpter, supra, and Judge Gibbons' decision in People v. Fraiser, supra, there does not appear to be any New York cases dealing with the question of obtaining police department personnel records in criminal cases by subpoena duces tecum. Research by the court of case law in other jurisdictions discloses a paucity of cases dealing with this issue even in a tangential manner.

In United States v. Marcello, 423 F.2d 993 (5th Cir. 1970) cert. den., 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970); People v. Barker, 78 Ill.App.2d 298, 223 N.E.2d 190 (First District, Second Division 1966); Pitchess v. Superior Court, Los Angeles County, 109 Cal.Rptr. 596 (Court of Appeals, 2nd District; A.S. #7, 1973) and City of Los Angeles v. Superior Court, 33 Cal.App.3d 778, 109 Cal.Rptr. 365, 2nd District (1973) requests to subpoena the personnel records of police officers were denied.

In State v. Fleishman, 495 P.2d 277 (Ct. of Appeals of Oregon, Dept. 1, 1972) and State ex rel. De Concini v. Superior Court In and For Pima County, 20 Ariz.App. 33, 509 P.2d 1070 (Div. 2, 1973) the requests for issuance of the subpoenas were granted.

In Marcello, supra, the defendant had been convicted for assaulting and intimidating a federal officer. The Court held that the trial court order quashing the subpoena requesting personnel records of the police who had been assaulted was proper. In Barker, supra, the Court held that the rule that a defendant is entitled to examine statements of a witness in the possession of the prosecution to discover inconsistencies for impeachment purposes did not go so far as to require the police department to produce personnel records. In Pitchess, supra, the defendant was charged with battery against four sheriff's deputies. The lower court denied a motion to quash the subpoena and ordered the sheriff's office to produce records 'relating to any allegations by members of the police involving the alleged excessive use of force' by the deputies involved. The appellate court reversed the lower court order. The Court based its reasoning on the grounds that the declaration in support of the subpoena was insufficient factually to support its issuance because it failed to state how the officers used excessive force and failed to allege what, if any, force the defendant used. That to obtain a subpoena whether in a civil or criminal case, the applicant had to show specific facts in justification and must specify in full detail the materiality of the data sought to the issue involved. It is interesting to note that the Court did not indicate that an In camera inspection by the Court was necessary. In City of Los Angeles (Ferguson), supra, the plaintiff Ferguson brought a personal injury action for assault against a police officer, a member of the Los Angeles Police Department. She moved for discovery of the personnel folder of the defendant, which was opposed on the ground of privilege. The Los Angeles Police Department also opposed the motion and asserted that inspection of the personnel file would constitute an unwarranted invasion of personal privacy and a disclosure of confidential information contrary to public interest. The Superior Court ordered the personnel folder produced, and defendant appealed on grounds that the requested material was irrelevant and privileged. In upholding the defendant's claim of privilege, the Court vacated the order to produce the personnel records and stated (pp. 785--786, 109 Cal.Rptr. p. 369):

'Such raw data--which may include unverified and unfounded complaints, confidential investigations on the officer by his colleagues and superiors, and such privileged material as medical and psychiatric examinations--(are) not lightly to be invaded . . . Confidential personnel files are vital to the development of full information on members of the police department. Proper supervision and control of any large body of subordinates demands comprehensive personnel records which will fully and accurately reflect their performances, a demand that would be largely frustrated if personnel records became routinely available for public inspection . . . 'The members of a police department must be able to rely on their confidential...