People v Cedeno (Mario)

[*1] People v Cedeno (Mario) 2004 NY Slip Op 50774(U) Decided on July 7, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 7, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED July 7, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-801 S C

THE PEOPLE OF THE STATE OF NEW YORK,

against

MARIO CEDENO, Respondent. SUFFOLK COUNTY POLICE DEPARTMENT, Non-Party Appellant.

Appeal by the non-party Suffolk County Police Department from an order of the District Court, Suffolk County (K. Crowley, J.), dated February 26, 2003, granting defendant's motion for a judicial subpoena duces tecum.

Order unanimously reversed without costs and defendant's motion for a judicial subpoena duces tecum denied.

In our view, defendant's motion for a judicial subpoena duces tecum, directed at the personnel files of the officers involved in defendant's arrest, should have been denied. To overcome the protections provided by Civil Rights Law § 50-a (e.g. Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 568 [1986]; Zarn v City of New York, 198 AD2d 220, 220-221 [1993]) and the Criminal Procedure Law's discovery prescriptions (Matter of Terry D., 81 NY2d 1042, 1045 [1993]; Matter of Constantine v Leto, 157 AD2d 376, 378 [1990], affd 77 NY2d 975 [1991]; People v Begley, 279 AD2d 426, 426-427 [2001]), a party seeking discovery of the contents of police personnel files must allege sufficient facts as "would make it reasonably likely" (People v Gissendanner, 48 NY2d 543, 550 [1979]) that the files contain "documentary information . . . [constituting] relevant and exculpatory evidence" (Constantine, 157 AD2d at 378). Defendant's speculative assertions regarding the possibility of alleged prior complaints against the officers for misconduct did not constitute the [*2]"clear showing of facts" to justify the relief sought (People v Valentine, 160 AD2d 325, 326 [1990]; see also Matter of Police Dept., County of Nassau v Judge, 237 AD2d 354, 355 [1997]).

Further, defendant's stated purpose in seeking the subpoena, to impeach the officers' accounts of defendant's conduct in the course of the arrest, by reference to the officers' alleged prior use of unnecessary force in the exercise of their duties, amounts to an impermissible "fishing expedition[] . . . for collateral materials to be used for impeachment purposes" (Zarn v City of New York, 198 AD2d at 220-221; see People v Scott, 212 AD2d 477, 478 [1995] [same]). While "a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility" (Badr v Hogan, 75 NY2d 629, 634 [1990]; see People v Schwartzman, 24 NY2d 241, 244 [1969] [same]; Matter of Edward F.,154 AD2d 464, 465 [1989] ["Evidence tending to show a witness's bias, hostility or motive to lie is not collateral, but is directly probative of credibility"]), "[i]t is well settled that extrinsic evidence may not be used to impeach the credibility of a witness on collateral matters" (Parsons v 218 E. Main St. Corp., 1 AD3d 420 [2003]). Defendant failed to establish a reasonable likelihood that the files contained evidence of conduct evincing the requisite "moral turpitude" (Badr v Hogan, 75 NY2d at 634) and not merely collateral matters offered to impeach the officers' "general credibility" (People v Rementeria, 243 AD2d 736 [1997]).
Decision Date: July 07, 2004