People v. Portillo

• Decision Date: 23 July 2021
• Docket Number: 1064-2019
• Citation: 153 N.Y.S.3d 758,73 Misc.3d 216
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Fidel PORTILLO, Defendant.
• Court: New York Supreme Court

73 Misc.3d 216

153 N.Y.S.3d 758

The PEOPLE of the State of New York, Plaintiff,

v.Fidel PORTILLO, Defendant.

1064-2019

Supreme Court, Suffolk County, New York.

Decided on July 23, 2021

HONORABLE TIMOTHY D. SINI, District Attorney of Suffolk County, JOHN SCARGLATO, Esq., of counsel, Criminal Courts Building, 200 Center Drive, Riverhead, New York 11901, for plaintiff.

PETER MAYER, Esq., Attorney for Defendant, Mayer Baron, PLLC, 38 Kings Highway, Hauppauge, NY 11788, for defendant.

Chris Ann Kelley, J.

ISSUE PRESENTED

At issue is the proper application of CPL § 245.20(1)(k)(iv) to the present case with regard to documents in possession of the Internal Affairs Unit of the Suffolk County Police Department. The People and Defense argue diametrically opposed interpretations of the statute, and the consequences thereof. The Defense argues that the statute requires the People to provide every single piece of paper associated with matters internal affairs has determined to be substantiated and unsubstantiated. The People insist the statute requires them only to provide the Defense with investigative summaries of matters internal affairs has determined to be substantiated and unsubstantiated. The position of both parties relies upon the built-in-assumption that any matters found by internal affairs to be substantiated and unsubstantiated fall under CPL § 245.20(1)(k)(iv).

In the Defendant's motion sparking the litigation of this issue, Defendant interprets CPL § 245 as requiring full disclosure of all misconduct records prepared and maintained by the Suffolk County Police Department. In opposition, the People argue they should only be required to provide summary reports provided to them by the Suffolk County Police Department that they determine tends to impeach.

Both parties rely heavily upon People v. Randolph , a case decided last year by the Hon. Mark Cohen, which addressed arguments similar to those presented by the instant motion. That case held that matters determined to be substantiated and unsubstantiated must be disclosed, concluding as follows:

"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." 69 Misc. 3d 770, 773, 132 N.Y.S.3d 726 (Suffolk Sup. Ct., 2020). (Emphasis added)

The Randolph case explained its rationale as follows:

"Therefore, 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. Consequently, IAB files involving allegations that have been determined to be exonerated or unfounded are not required to be provided as part of automatic discovery. As to information required to be produced in substantiated and unsubstantiated IAB files, the issue of utilization of this material for impeachment must be determined by the hearing/trial judge, based, inter alia, on the good faith basis for cross-examination relevant to the credibility of the witness. The People thus may seek an limine ruling to preclude any cross examination where the nature of the conduct or the circumstances in which it occurred does not bear logically and reasonably on the witness's credibility or there is no good faith basis for the inquiry." 69 Misc. 3d 770, 772, 132 N.Y.S.3d 726 (Suffolk Sup. Ct., 2020) (Internal citations omitted).

Thus, Randolph requires the People to provide to the Defense all substantiated and unsubstantiated files, in any form, of any subject matter, as the existence of those investigations presents a potential good faith basis for cross examination for the Defense to employ, subject to an in-limine application before the trial court.

The People's requirement to provide this favorable/Brady material in People v. Randolph (supra) was specifically linked to New York Guide to Evidence § 6.17, which describes "Impeachment by Instances of Misconduct." Under that subsection of the New York Guide to Evidence, the Defendant may impeach a witness "on cross-examination by asking the witness about prior specific criminal, vicious, or immoral conduct of the witness."

The only limitations on such material under the New York Guide to Evidence are as follows:

"(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."

This Court joins in the reasoning of People v. Randolph (supra) as regards substantiated and unsubstantiated matters. They constitute favorable/Brady material and must be disclosed to permit the Defense to properly investigate, assess, and prepare for trial. However, People v. Randolph (supra ) held that exonerated and unfounded cases need not be disclosed, as they lacked a good faith basis (and thus fail to satisfy element [ii] in New York Guide to Evidence § 6.17). This Court departs from Randolph as regards investigations which have been determined by the police department to be unfounded or exonerated.

Upon review of the subject statute above, and in view of controlling constitutional and caselaw precedent, this Court agrees with People v. Randolph (supra) , in part, and departs in part. People v. Randolph (supra) incorporates two assumptions: 1) only matters which the police department determines are "substantiated" and "unsubstantiated" "tends to impeach," 2) the credibility determination by the police department is relevant to whether allegations which "tend to impeach" must be disclosed pursuant to CPL § 245.20(1)(k)(iv).

ASSUMPTION No.1 — only matters which the police department determines are "substantiated" and "unsubstantiated" "tends to impeach"

People v. Randolph explicitly states that any matter determined by the police department to be substantiated or unsubstantiated (regardless of subject matter) is discoverable under CPL § 245.20(1)(k)(iv), but that any matter determined by the police department to be unfounded or exonerated (regardless of subject matter) is NOT discoverable. See People v. Randolph , 69 Misc. 3d 770, 772, 132 N.Y.S.3d 726 (Suffolk Sup. Ct., 2020). This Court does not agree that the ultimate disposition of the investigation determines whether the matter "tends to impeach" as that term is used in CPL § 245.20(1)(k)(iv).

A. MEANING OF "TENDS TO IMPEACH":

CPL § 245.20(1)(k)(iv) requires the People to disclose that which "tends to impeach" a witness.

Two recent decisions by the New York Court of Appeals bear particularly upon this issue: People v. Smith , 27 N.Y.3d 652, 660, 36 N.Y.S.3d 861, 57 N.E.3d 53 (2016) and People v. Rouse , 34 N.Y.3d 269, 277, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019).

The 2016 New York Court of Appeals case of People v. Smith reaffirmed the long-held principle of law that "law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination." The Court cited to its former precedent from People v. Walker , 83 N.Y.2d at 461, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] that:

"impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful. One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility." People v. Smith , 27 N.Y.3d 652, 660, 36 N.Y.S.3d 861, 57 N.E.3d 53 (2016).

The Court in Smith noted that "[g]iven these central principles, prosecution 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’ ( People v. Smith , 27 N.Y.3d 652, 660, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016] ).

Finally, the Smith Court noted the type of allegations which tend to impeach police witnesses are not simply those which have been established at a formal proceeding:

"Likewise, a police witness's prior bad act that similarly has not been proved in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination. Nor do allegations of police misconduct lose their relevance to a police witness's credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral. Indeed, we have approved cross-examination on a defendant's use of aliases and other suspect, but not criminal, conduct because "even where the proof falls outside the conventional category of immoral, vicious or criminal acts, it may be a proper subject for impeachment questioning where it demonstrates an untruthful bent or significantly reveals a willingness ... to place the advancement of his individual self-interest ahead of principle or of the interests of society"

"As we indicated in Garrett , and emphasize here, law enforcement witnesses should be treated in the same manner as any other witness for purposes of cross-examination. The same standard for good faith basis and specific allegations relevant to credibility applies—as does the same broad latitude to preclude or limit cross-examination." People v. Smith , 27 N.Y.3d 652, 661-62, 36 N.Y.S.3d 861, 57 N.E.3d 53 (2016) (Internal Citations Omitted).

The 2019 New York Court of Appeals case of People v. Rouse , 34 N.Y.3d 269, 277, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019) addressed issues strikingly similar to those presented to this court. In Rouse ...