People v Cintron

[*1] People v Cintron 2015 NY Slip Op 51914(U) Decided on December 7, 2015 Criminal Court Of The City Of New York, Kings County Campanelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2015
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Luis Cintron, Defendant.



2104KN066686



Defendant/movant Iris Ying Esq. (Brooklyn Defender Services)

Interested Party Civilian Complaint Review Board by Lindsey Flook Esq,. Ass't Dep. Exec. Director

Interested Party NYC Police Dept. by Nicholas Reale Esq. for Douglass B. Maynard Esq, Dep. Commissioner-Legal Matters
Joy Campanelli, J.

By motion filed September 23, 2015, defendant Luis Cintron moves pursuant to Civil Rights Law 50-a for an order granting an in camera inspection, and/or by subpoena, of any and all records contained in the personnel files or otherwise, including prior or current internal and civilian complaints, indicating prior or current internal and civilian complaints, investigations or reports in which allegations of corruption, theft, falsehoods, illegal arrests and/or searches, fabrication of charges and/or evidence, use of excessive deadly or non-lethal force, dishonesty and improper tactics such as conduct unbecoming an officer, neglect of duty, or false arrest, including but not limited to personnel files, Internal Affairs files and Civilian Complaint Review Board (CCRB) proceedings of New York Police Department for New York City Police Department employee Officer Michael Izzo. Non-party New York City Police Department filed an affirmation in opposition and memorandum of law dated November 5, 2015. In opposition to the defendant's motion, non-party CCRB filed a cross-motion in opposition on or about September 25, 2015, requesting an order pursuant to CPL 240.50 and CPL 340.30 shielding the confidential CCRB records from disclosure to the defendant. Police Officer Izzo has not responded to the defendant's motion.[FN1]

Defendant is charged with Menacing in the Second Degree (Penal Law §120.14[1]), Reckless Endangerment in the Second Degree (Penal Law § 120.20), Harassment in the Second Degree (Penal Law § 240.26[1]), and Criminal Possession of a Weapon in the Fourth Degree (Penal Law [*2]§ 265.01[2]).

Civil Rights Law § 50-a(1) and (2) provides in relevant part:

All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency of individuals defined as police officers 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.

Prior to issuing such court order the judge must review all such requests andgive interested parties an opportunity to be heard.[FN2] No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

The accusatory instrument executed by Arresting Officer Michael Izzo states that on September 4, 2014 at 2849 West 31rd Street, Kings County, Officer Izzo, who was in an unmarked car, observed the defendant on a metal razor scooter, grabbing the waistband of his pants as if he was holding an object in his waistband. Defendant stopped riding the scooter, looked at the police officer in the unmarked car, grabbed at his waistband of his pants, and then picked up the scooter over his head and threw it onto the vehicle.[FN3]

The defendant challenges Officer Izzo's credibility, and claims that he is entitled to an in camera review of disciplinary and personnel records. In support of this allegation, the defendant submits four partial captions where defendant represents that Officer Izzo was a co-defendant. In the first of the cases, which the Court can only assume was in one of the federal district courts in New York, the defendant alleges that Officer Izzo and other unidentified officers stopped the plaintiffs without probable cause, used excessive force and fabricated charges against him. The defendant then represents that the matter was settled for an unknown sum of money. In the second case in a federal court with unidentified co-defendants, the defendant alleges that Officer Izzo and the other officers fabricated charges and used excessive force. Here too, the plaintiff quickly settled the case for an undisclosed sum of money.[FN4]

In the third case cited by the defendant, he alleges that Officer Izzo and unknown defendants were sued for being present and failing to interfere when the plaintiff was accosted by two officers. This case, in which the plaintiff's wrist was fractured, settled for $15,000 within three months of commencement.

In the last case, the defendant alleges that Officer Izzo and other unknown defendants were sued for entering the plaintiff's home without permission, fabricating evidence of felony drug possession. Here, the plaintiff settled his case for $32,500.

Defendant argues that a review of the CCRB records, personnel and disciplinary records may provide a motive for Officer Izzo to testify falsely or demonstrate biases relevant to the case. [*3]Furthermore, Officer Izzo's alleged history of fabrication of evidence, use of excessive force, and unlawful arrests will help the defendant to "to present to the court a fuller picture of the circumstances surrounding his arrest and the police officer's testimony.

Defendant argues that he needs only to put forth in good faith some factual predicate which would make it reasonably likely that the file could contain some fruit, citing People v Hall, 693 NYS2d 813 (Sup Ct, Kings County 1999); and the defendant meets his burden by proffering facts that permitted an inference that statements were reasonably likely to contain statements which could contradict key prosecution witnesses (People v Kozlowski, 11 NY3d 223, 242 [2008]).

In opposition to the defendant's applications, People cite Civil Rights Law § 50-a(2) which requires that a movant who seeks production of confidential records make a clear showing of facts sufficient to warrant a judge to request the records for an in camera review. The application must show reasonable likelihood of the existence of facts which are relevant, material and exculpatory to the action before this Court

People argue that stipulations of settlement in civil actions cannot be used as a basis for any subsequent litigation inasmuch as all settlement agreements on behalf of the City of New York state, "nothing contained herein shall be deemed to be an admission of liability by defendants or the City of New York, nor an admission that any of the allegations made by plaintiff are true, or that defendants violated any rights " of the plaintiffs.

People contend that the defendant's motion for review of the officer's personnel records is a "fishing expedition," being sought for use against the officer as impeachment material at defendant's trial.

In opposing the defendant's motion, the CCRB argues that the defendant's request is all encompassing and extensive in its "broadside" demand of all records, including records relating to inner working of the CCRB. Defendant's demand for irrelevant information is outside the scope of discovery, challenges the integrity of the CCRB's investigative processes and would harm CCRB's ability to perform its Charter-mandated work. Counsel for the CCRB represents that it has no file or information on the current action and has no records of any complaints against Officer Izzo "for any acts of misconduct of any type that have been substantiated by CCRB."

The legislative purpose of CRL 50-a was to protect police and other officers' records from unsubstantiated and irrelevant complaints of misconduct and as a means for harassment and for cross-examination (Gannett Co Inc. v James, 108 Misc 2d 862, aff'd 86 AD2d 744 [4th Dept 1982]).

Prior to issuing an order, the court must review all such requests and give interested parties an opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the court to request records for review. Where a party fails to submit facts from which a court could conclude that the intrusion into the confidentiality of police records was warranted, an order for production of such records for court inspection was not warranted. (Flores v City of New York, 207 Ad2d 302 [1st Dept 1994])

Disclosure after an in camera inspection may be warranted "when a defendant shows a likelihood that a witness' prior criminal or disciplinary record may provide a motive to falsify," or "when prior bad acts allegedly contained within disciplinary or personnel records bear peculiar relevance to the circumstances of the defendant's case." However, a defendant is

obligated to submit in good faith "some factual predicate" which would make it reasonably [*4]likely that the file in question contains relevant material which may be determined to "directly bear on the hard issue of guilt or innocence."(People v Gissendanner, 48 NY2d 543, 549-550 [1979]. Before a court will order a review of the records, the information sought by the applicant must be shown to be relevant and material to the issue at hand (Taran v State, 140 AD2d 429 [2d Dept 1988]); (See also, People v Lugo, 93 Misc 2d 195 [Crim Ct. NY County 1978]; personnel records should not be examined each time an arrest is made.)

In support, defendant's counsel submits an affidavit made upon information and belief, the source allegedly being official court papers, conversations with the defendant and information supplied from an investigation conducted by Brooklyn Defender Services. The defendant fails to submit any exhibits to support his arguments, or to identify these sources with any particularity.

A motion is based on either the personal knowledge of the affiant or upon information and belief, in which case the affiant must state the sources of the information and the grounds for such belief. The defendant should further submit any documentary evidence supporting or tending to support the allegations of the moving papers; (see, for example, CPL 210.45[1], CPL 330.40[2][a], and CPL 710.60[1]).

The defendant has neither met his initial burden (Dunnigan v. Waverly Place Police Dept, 279 AD2d 833 [3d Dept 2001] lv denied 96 NY2d 710), nor set forth in good faith some factual predicate which would make it reasonably likely that the files would contain information that would directly bear on the hard issue of guilt or innocence and show that defendant was not merely conducting a "fishing expedition" to gain information in order to impeach the police officer's general credibility. (See People v Henry, 242 AD2d 877[4th Dept 1997], lv denied 91 NY2d 834 [1997] citing Gissendanner at 550; People v Davis, 203 AD2d 300 [2d Dept 1994, lv denied 83 NY2d 996).

Defense counsel's challenge to the officer's truthfulness by vague assertions that the federal lawsuits allude to fabrication of evidence, excessive force, stopping defendants without probable cause, and standing by while other officers perpetrated these acts, is unpersuasive. Thus, defendant's attempts to obtain information relating to prior acts of false arrests and unnecessary force amount to an impermissible fishing expedition for collateral materials to be used for impeachment purposes. (People v Cepeno, 4 Misc 3d 134[A] [App Term, 2nd Dept 2004] citing Zarn v City of New York 198 AD2d 220 [1993]. Defendant has failed to establish through "facts" presented, largely "upon information and belief" and largely without the necessary support required of "upon information and belief" allegations, that there is reasonable likelihood that the requested files will contain evidence of specific conduct which will show the police officer's sole specific accusation in this case of alleged lying , which will have a bearing on the officer's credibility (Cepeno, citing Badr v Hogan, 75 NY 629, 634 [1990]). In fact, defendant has attempted to raise issues of collateral matters offered to impeach the officers (see People v. Rementeria, 243 AD2d 736 [2nd Dept 1997] lv denied 91 NY2d 896 [1998]), which is not permissible.

The Court finds that the defendant has failed to make a clear showing of facts sufficient to warrant this Court to order records for review or the issuance of subpoenas (CRL § 50-a[2]). (See, for example, People v Hernandez, Docket no. 2013KN086748, Crim Ct, Kings County, Oct. 22, 2014, Kalish, J)

Defendant's motion for an order pursuant to CRL § 50-a for an in camera inspection

and/or subpoena of Officer Izzo's personnel records, Internal Affairs records and related CCRB [*5]records is denied

This constitutes the Decision and Order of the Court.

Dated: December 7, 2015

_______________________________

JOY CAMPANELLI, J.C.C.

Footnotes

Footnote 1:In July of 2015 the defendant had filed an almost identical motion which this Court denied by decision dated July 31, 2015 on the grounds that the defendant had failed to notice interested parties NYPD, Civilian Complaint Review Board and Officer Michael Izzo, thus depriving each the opportunity to be heard on the defendant's application. Here, defendant submits affidavit of service on Officer Izzo at his place of employment, NYC Housing Police Dept, at 2860 West 23rd St., Brooklyn.

Footnote 2:See CPLR §§ 1001 and 1003, Necessary Joiner of Parties, and Nonjoinder and misjoinder of Parties

Footnote 3:Defendant had previously challenged the facially sufficiency of the accusatory instrument which application was denied by this Court in a decision dated April 13, 2015.

Footnote 4:Both cases were commenced on the same date and settled on the same date (within 50 days of commencement). Defendant has chosen not to submit any additional information or documents in support of his representations.