People v. Polanco-Chavarria

• Decision Date: 29 December 2021
• Docket Number: Indict. No. 70072-21
• Citation: 74 Misc.3d 1210 (A),160 N.Y.S.3d 562 (Table)
• Parties: The PEOPLE of the State of New York, v. Elmer POLANCO-CHAVARRIA, Defendant.
• Court: New York County Court

74 Misc.3d 1210 (A)
160 N.Y.S.3d 562 (Table)

The PEOPLE of the State of New York,
v.
Elmer POLANCO-CHAVARRIA, Defendant.

Indict. No. 70072-21

County Court, New York, Rockland County.

Decided on December 29, 2021

James D. Licata, Public Defender, Rockland County (Stefanie Jordan of counsel), for defendant.

Thomase E. Walsh, II, District Attorney, Rockland County (Thomas E. Walsh, II and Veronica Phillips of counsel), for the People.

Larry J. Schwartz, J.

The following papers were considered on the People's motion seeking vacatur of the Court's Amended Compliance Conference Order dated November 22, 2021: (1) the Order to Show Cause and Affirmation in Support of District Attorney Thomas E. Walsh, II, (2) the Affirmation in Opposition of Assistant Public Defender Stefanie Jordan, (3) the Reply Affirmation of ADA Veronica Phillips, and (4) the memoranda of law of the Town of Ramapo Police Department and the Rockland County Police Benevolent Association as amici curiae.¹

Upon the foregoing papers, the motion is disposed of as follows:

On November 10, 2021, the Court held a compliance conference in this matter to address outstanding discovery issues. During the conference, the defense objected to the sufficiency of the People's inquiry of police or other law enforcement agencies acting on the government's behalf as required by CPL § 245.20(1)(k). The People advised that as to the instant prosecution, the following questions were posed to relevant law enforcement officers:

1. Have you ever been convicted of a criminal offense as defined by the NYS Penal Law or Article 31 of the NYS VTL (Alcohol and Drug related offenses)?

2. Are you aware of any pending criminal complaints against you? (If so, don't give details-just charge, jurisdiction and defense attorney)

3. Are you aware of any past or currently pending findings or decision by a court that you were untruthful? (If yes, What case?)

4. Are you aware of any past or currently pending civil lawsuits or substantiated departmental complaints of misconduct that may bear on the credibility of your testimony in this case?

Among other objections, the defense argued, as it does here, that the scope of question No.4 was too narrow because the People have an obligation pursuant to CPL § 245.20(1)(k) to provide more than just substantiated complaints of misconduct but unsubstantiated, exonerated, and unfounded complaints as well. At the conference, the Court directed the People to inquire further as to unsubstantiated complaints of misconduct and issued a compliance conference order dated November 10, 2021 and, subsequently, the Amended Compliance Conference Order dated November 22, 2021 that is now at issue.² The Amended Compliance Conference Order states:

To facilitate compliance with Article 245, the Court in its discretion ORDERS the following:

1. The People are to advise in writing whether any of the law enforcement officers who are potential testifying prosecution witnesses have ever been the subject of any civil suits or departmental complaints of misconduct whether substantiated or unsubstantiated.

2. The People are to advise the names and dates of the suits and complaints, if any.

3. The People confirm that the inquiry will be made of a superior officer who will confirm having reviewed the subject officers’ personnel files.

4. The People are to file an additional COC pursuant to CPL § 245.35(3) as the Court previously directed on 5/12/21 and 7/13/21. Pursuant to CPL § 245.35(4), the additional COC shall also list all police officers and other persons who have participated in investigating or evaluating the case and confirm that each one of those individuals has responded to the prosecution's inquiries under subdivision three of CPL § 245.35.

5. All of the above is to be submitted by 11/30/21.

The People argue, among other things, that their inquiry was sufficient to satisfy their CPL § 245.20(1)(k) obligations, and the Court should not have ordered the People to disclose materials not discoverable pursuant to Brady and its progeny such as unsubstantiated departmental misconduct complaints. The People also contend the Court should stay this prosecution until the Appellate Division enters a determination and judgment in a CPLR Article 78 proceeding (Matter of Sini v. Hon. Chris Ann Kelley et al. , Suffolk Co. ind. No. 1064-19 [App. Div. 2d Dept]). There, the petitioner Suffolk County District Attorney is challenging the Suffolk County Supreme Court's order requiring disclosure of the entirety of the misconduct investigation files of the relevant officers in a prosecution including substantiated, unsubstantiated, unfounded, and exonerated allegations of misconduct.

The defendant opposes the motion and argues that the Court was within its authority to issue the Amended Compliance Conference Order directing disclosure of substantiated and unsubstantiated complaints of misconduct. The defendant also contends that, in fact, the Court did not go far enough, and the Court should have also directed the disclosure of the existence of unfounded and exonerated allegations of misconduct. This is so, the defense contends, because CPL § 245.20(1)(k) does not provide for the determination of what is discoverable to be guided by the People's assessment of the credibility or usefulness of the allegations for impeachment. The defense also argues that the failure of the People to examine the relevant officers’ disciplinary files themselves means they did not exercise due diligence in determining the existence of discoverable impeachment material.

As is relevant here, CPL § 245.55(1) provides:

Sufficient communication for compliance. "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

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