People v Calderon

[*1] People v Calderon 2015 NY Slip Op 51273(U) Decided on August 7, 2015 Supreme Court, New York County Kahn, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2015
Supreme Court, New York County

The People of the State of New York

against

Ronald Calderon, Defendant.



3625/2014
Marcy L. Kahn, J.

By notice of application filed July 10, 2015, defendant Ronald Calderon, charged with criminal possession of a controlled substance in the third degree (PL §220.16), has moved pursuant to Criminal Procedure Law §610.20(3) and Civil Rights Law §50-a for in camera inspection of certain records of the New York City Civilian Complaint Review Board (CCRB) and of the New York Police Department (NYPD) pertaining to disciplinary records of Detective Jamal Hairston of the NYPD, who is expected to be a key witness for the prosecution in the instant case.[FN1] On July 13, 2015, this court issued subpoenas duces tecum to the CCRB and NYPD for such records, requiring notice of the CCRB and NYPD and setting August 3, 2015 for oral argument on any motions to quash such subpoenas. On July 27, 2015, the CCRB filed a motion to quash the subpoena, or alternatively, for a protective order as to its own investigative work product.

On August 3, 2015, this court held oral argument on defendant's motion and on the cross-motions of the CCRB and NYPD (the latter cross-motion made orally that day) to quash their respective subpoenas. At the conclusion of the argument, this court rendered its ruling on all of the motions orally. This written decision and order recapitulates that ruling.

In People v. Gissendanner, 48 NY2d 543 (1979), the Court of Appeals, construing the [*2]then-recently enacted provisions of Civil Rights Law §50-a [FN2] , announced the balance to be struck where a criminal defendant's constitutional rights to compulsory process and confrontation conflict with the cloak of confidentiality surrounding police personnel files. The Court explained that subpoenas for such records could not be used for discovery purposes to ascertain the existence of evidence, but rather require the putting forth of a good faith factual predicate making it reasonably likely that:

"the record actually contains information that carries a potential for establishing the unreliability of either the . . . charge or of a witness upon whose testimony it depends."

(People v. Gissendanner, 48 NY2d at 550). Specifically, the defendant must demonstrate "a likelihood that the [police] witness' prior criminal or disciplinary record may provide a motive to falsify," or that the witness' prior acts of misconduct believed to be within such records "bear peculiar relevance to the circumstances of defendant's case." (Id., at 549). Where such a "clear showing" has been made (Civ. R. L. §50-a[2]), the court may order the records produced for in camera review, and, upon finding matter within them which is relevant and material to the action, disclose them to the defendant.

Here, the defense seeks information pertaining to Detective Hairston, a narcotics detective, who has been alleged in a federal civil rights action to have fabricated testimony as to the conduct of another individual (Rodney Smith) he arrested under circumstances similar to those present in this case. Defendant Calderon observes that the felony complaint against Smith was subsequently dismissed on the motion of the prosecution. Defendant Calderon does not seek any records as to misconduct of Detective Hairston not relating to his credibility in reporting observations of narcotics trafficking. Defendant Calderon has not filed complaints to either the CCRB or the NYPD as to Hairston's conduct in this case.

Because the defendant made a clear showing of prior acts of misconduct which would bear peculiarly on the circumstances of his own case, this court ordered the CCRB and NYPD to provide to the court for in camera review:

any final reports and any audio-video recordings concerning their agencies' respective investigations as to either 1) the incident at issue in this case, or 2) which resulted in a finding by the agency which substantiated allegations of Detective Jamal Hairston's misconduct in the circumstances sought.

(See People v. Wesley, Ind. No. 4362/2014 [Jackson, J.] [May 7, 2015]. The court also granted [*3]the protective order sought by the CCRB, directing that the agency's pre-decisional material, including planning, strategy and discussion of unsubstantiated allegations need not be included within the material furnished to the court. Compliance was to occur by August 5, 2015, at 12:00 p.m.

On August 3, 2015, counsel for the CCRB reported to the court and counsel for the parties that he had conducted a search of CCRB's electronic case tracking database and found no substantiated complaints against Detective Hairston as to the instant matter or as to the conduct which is the subject of defendant's inquiry. By letter under seal dated August 4, 2015, counsel for the NYPD informed the court that its search of the Internal Affairs Bureau central database index of the detective's substantiated allegations similarly produced no material responsive to the court's directive.

Accordingly, there is no material to be provided to the defendant in response to the subpoenas as modified by this court's order.

The foregoing constitutes the decision and order of the court.

_________________________

Marcy L. Kahn, JSC

Dated:New York, New York

August 7, 2015 Footnotes

Footnote 1:The motion also sought production of certain material fromthe New York County District Attorney's office pursuant toBrady v. Maryland 373 U.S. 83, 83 S. Ct. 1194 (May 13, 1963).That aspect of the motion has been resolved consensually bythe parties.

Footnote 2:Civil Rights Law §50-a provides in relevant part: All personnel records . . . of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order. (Civ. R. L. §50-a[1], L.1976, c. 413, §1).