People v D.N.

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[*1] People v D.N. 2018 NY Slip Op 28378 Decided on December 4, 2018 Criminal Court Of The City Of New York, Bronx County Collins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 4, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,


D.N., Defendant.


For the People: ADA Brian H. Connor, Esq, Bronx County District Attorney's Office

For the Defendant: Pat Bonanno, Esq
Tara A. Collins, J.

The defendant, a New York State trooper, is charged with Driving While Intoxicated (VTL §§ 1192 [2], [3]) and Driving While Ability Impaired (VTL § 1192 [1]). Shortly after the defendant's arrest, the People utilized their subpoena power under Civil Rights Law § 50-a (4) to obtain the defendant's employment records as a state trooper. On May 10, 2018, an impromptu hearing was held on the propriety and legality of the People's use of § 50-a (4). At that hearing, the Court ruled that the People abused their subpoena power and precluded them from using any information or material obtained from the subpoena.

The defendant now moves for dismissal of the charges against him in furtherance of justice under CPL § 170.40 (1), arguing that the People's abuse of subpoena power compels such a result. The People contend that the subpoena was issued properly; and even if it was not, the remedy is suppression of the inappropriately obtained evidence and not dismissal of the charges.

Having reviewed additional papers submitted by both parties and the documents in the court file, the Court adheres to its earlier oral ruling that the People abused their authority. However, the People's misconduct here was not so egregious as to warrant dismissal in the interest of justice. Having further balanced the factors enumerated in CPL § 170.40 (1), the Court DENIES the defendant's motion to dismiss.


The defendant is a New York State trooper. On July 28, 2017, police responded to an anonymous 911 call of a man sleeping behind the wheel of a running motor vehicle. When the police arrived, they found the defendant sleeping in a parked car. The People allege that the car was parked in the middle of the road at an awkward angle, blocking a driveway. They further allege that the defendant was unresponsive to verbal communication by the officer who came to [*2]the scene. The responding officer noticed an odor of alcoholic beverage emanating from the defendant's breath and observed him to have bloodshot, watery eyes. The defendant was transported to the 45th Precinct where a breathalyzer test was conducted. It was determined that the defendant had a blood alcohol content of .16 per centum by weight of alcohol. The defendant was subsequently charged with Driving While Intoxicated (hereinafter "DWI") and related charges.

After the commencement of this case, the assigned assistant district attorney (hereinafter "ADA") issued a subpoena to the New York State Police requesting the defendant's employment records. While a law enforcement officer's personnel records are considered confidential and may be disclosed only by the subject officer's consent (Civil Rights Law § 50-a [1]) or a court order (Civil Rights Law § 50-a [2]), the ADA used the exception for prosecutors found in subdivision four (Civil Rights Law § 50-a [4] ["The provisions of this section shall not apply to any district attorney or his assistants . . . which requires the records described in subdivision one, in the furtherance of their official functions"]). The People did not alert the Court about the subpoena prior to its issuance.

What happened next is not entirely clear to this Court. There is a copy of a letter from the New York State Police dated February 6, 2018 in the court file, indicating that the subpoenaed materials were received by the court. There is a handwritten note at the bottom of the letter stating, "Records given ADA 2-9-18." It is unknown if a judge had reviewed the records before they were turned over. The ADA indicates that he received the requested materials at some time prior to May 10, 2018. He does not specify whether the materials were received from the court or directly from the State police, or both. What is clear, however, is that after the People obtained the subpoenaed materials, the ADA e-mailed defense counsel. In that e-mail, there was an attachment of a PDF file consisting of the defendant's personnel records, which was redacted in accordance with an internal review by the District Attorney's Office.

On May 10, 2018, defense counsel brought up the issue of the propriety and legality of the People's use of Civil Rights Law § 50-a (4) to obtain the defendant's employment records. The Court was unfamiliar with the case and held an impromptu hearing on the issue. An ADA from the Public Integrity Bureau argued for the People as the assigned ADA was engaged in a trial. At the hearing, the People argued that the plain language of the statute, which permits "any district attorney or his assistants" to obtain personnel records of law enforcement officers as long as it is "in the furtherance of their official functions," gave them, in essence, unqualified authority to subpoena the defendant's personnel records (Civil Rights Law § 50-a [4]). The People argued that obtaining the defendant's employment record was part of performing their official function as these records would be used to decide what kind of plea bargain may be offered. Moreover, they asserted that the records needed to be examined to see if there were any kind of official misconduct on the part of the investigating officers in this case. However, the People failed to give additional information as to what misconduct took place by the defendant or the investigating officers.

Defense counsel rebutted by arguing that the defendant was charged with DWI — as opposed to a charge of Official Misconduct, for instance — and that there was nothing unusual about the circumstances in how he was arrested or treated during the investigation. Accordingly, the defense argued, the defendant's employment record as a police officer was not at issue in this prosecution. Citing the abuse of authority by the prosecutor, the defendant asked the Court to [*3]preclude the People from using the subpoenaed materials and any information gleaned from them at trial.

At the conclusion of the hearing, the Court determined that there was nothing unusual about the way that the defendant was arrested or how the case was handled and investigated by the police. The Court was further unpersuaded by the People's claims of how they used or planned to use the information from the subpoenaed materials. The People could not describe what, if any, misconduct had taken place or any steps they took to subpoena any other investigating officers' information. Thus, the Court precluded the People from using the subpoenaed materials and any information gained from them at trial. Additionally, the Court ordered the People to turn over the materials to the Court for destruction, which the People complied.

The defendant filed the instant motion on June 11, 2018, claiming that the People's misconduct under § 50-a rose to such a level that dismissal of the charges is required in the interest of justice (CPL § 170.40 [1]). Both the defendant and the People filed successive motions over the course of ensuing five months. In those motions, both sides reargue their respective positions: Defense contends that the People's subpoena power under § 50-a is not unfettered and that their abuse of the power in this case compels dismissal. The People counter that they have a wide discretion and that their use of the statute in this case was proper.

During the course of motion practice, an issue that was not previously discussed during the hearing came up. The defendant now asserts that, very shortly after the arrest, he was subjected to an interrogation about the arrest by his employer and that his answers may have been included in the subpoenaed materials. He argues that these communications are subject to immunity under Garrity v. New Jersey (385 US 493 [1967]). In Garrity, the Supreme Court held that the statements made by police officer defendants at the threat of employment termination were involuntary and that their use by the prosecution violated the defendant officers' right against self-incrimination. The defendant claims that he too was compelled to give statements at the threat of termination of employment. He contends that the People's subpoena in this case was a way to obtain those involuntary statements.

On the other hand, the People acknowledge that they were aware of the interview that took place at or around the time of the defendant's arrest by his employer, the New York State Police. In fact, they claim that one of their objectives in issuing the subpoena was to obtain the defendant's statements from this interview, which they hoped to use in this prosecution. As to the potential Garrity issue, the People first rebut the defendant's contention that he was coerced into making statements to the State police. Even if the statements were coerced, the ADA represents that that when he received the subpoenaed materials from the State police, he turned the records over to another prosecutor in the Public Integrity Bureau of the District Attorney's Office to conduct a "Garrity screening" (People's Response, ¶¶ 13-16). The ADA further represents that upon completion of the screening, any potential Garrity materials were returned to him in a sealed manila envelope bearing the signature of the prosecutor who conducted the screening. The assigned ADA claims that he never opened the envelope and that he was not otherwise privy to the information contained in it. However, the assigned ADA served additional statement notice on November 15, 2018 while the instant motion was sub judice. These notices involved the defendant's statements made to ranking officers from the New York State Police on July 28, 2017, presumably during the defendant's interview.


A court may dismiss "[a]n information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof" in the interest of justice (CPL § 170.40 [1]). Such dismissal requires the "existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice." (id.) The power to grant this relief should be "'exercised sparingly' and only in that 'rare' and 'unusual' case where it 'cries out for fundamental justice beyond the confines of conventional considerations.'" (People v. Harmon, 181 AD2d 34, 36 [1st Dept. 1992] [internal citations omitted]; see also People v. Howell, 139 AD3d 484 [1st Dept. 2016]). Moreover, the power to dismiss in the interest of justice is not absolute (Harmon, at 36; People v. Reyes, 174 AD2d 87 [1st Dept. 1992]). In considering such a motion, a court must weigh ten factors listed in CPL § 170.40 (1) "individually and collectively" while striking a "sensitive balance between the individual and the State interests" (People v. Clayton, 41 AD2d 204 [2d Dept 1973]).

Before analyzing the Clayton factors, the Court reviews why the People's subpoena of the defendant's employment records was improper as that is at the heart of the issue in this case.

The People claim that, in subpoenaing the defendant's employment records here, they acted within the authority given to them by § 50-a. They contend that the plain language of § 50-a (4) gives them, in effect, unlimited subpoena power so long as they are conducting an investigation. They also point to CPL § 610.20, which confers subpoena powers to the criminal court, prosecutors, and lawyers. CPL § 610.20 (2) permits district attorneys to issue subpoenas without prior court authorization while CPL § 610.20 (3) requires defense attorneys to obtain so-ordered subpoenas when the subpoenaed entity is a government agency. The People argue that both Civil Rights Law § 50-a and CPL § 610.20 demonstrate the legislature's intent to confer a broad subpoena power to the prosecutors.

While the People are correct about the statutory distinctions, those statutes do not confer unrestricted and unfettered subpoena power to the People. Quite the contrary, "Because the statutory subpoena authority is so broad, and the recipient may be subject to contempt sanctions for failure to comply, by necessity courts have imposed limitations on the use of subpoena power" (Matter of Terry D., 81 NY2d 1042, 1044 [1993]). A district attorney in a misdemeanor prosecution derives his authority to subpoena "as an officer of a criminal court in which he is conducting the prosecution of a criminal action or proceeding" (CPL § 610.20 [2]).[FN1] This is why the subpoenaed materials must be returnable to court even when the district attorney issues a subpoena without a prior court authorization (CPL § 610.25 [1]). It follows, then, that it is the court that retains the ultimate authority on the outer parameters of the People's subpoena powers (People v. Natal, 75 NY2d 379, 385 [1990] ["Subpoenas, of course, are process of the courts, not the parties. While by statute it is the District Attorney who issues a subpoena duces tecum, the subpoena is nevertheless a mandate of the court issued for the court"] [emphasis original]).

The prosecutor's subpoena power arising from Civil Rights Law § 50-a (4) is no different. Green v. Safir is instructive (174 Misc 2d 400 [Sup Ct, NY County 1997], affd 255 [*4]AD2d 107 [1st Dept 1998]). In that case, the Public Advocate for the City of New York wanted access to the police department's disciplinary records for the officers against whom the Civilian Complaint Review Board "substantiated" claims. The court first held that it was in the furtherance of the duties as the Public Advocate to obtain and review such disciplinary records. (id. at 404) Then, significantly for our purposes, the court dictated which portions of the materials must be redacted from the disclosure to protect the officers' identity. (id.) Thus, the court may determine that only the information that is necessary "in the furtherance of their official functions" should be disclosed (Civil Rights Law § 50-a [4]; Matter of Hynes v. Moskowitz, 44 NY2d 383, 393-394 [1978] ["Bifurcation of the power, on the one hand, of the public official to issue subpoenas duces tecum and, on the other, of the courts to enforce them, is an inherent protection against abuse of subpoena power"]). Therefore, the Court holds that it may curtail the prosecutor's subpoena power under Civil Rights Law § 50-a (4).

The Court next examines whether the defendant's employment record was obtained in furtherance of the People's official functions. Unfortunately, there is little to no guidance on what constitutes a proper use of this statute. However, both parties agree that Matter of Terry D. (81 NY2d 1042) is controlling here. Terry D. was a family court case where a juvenile allegedly entered a classroom at a high school, cursed at the teacher and punched her in the head. A family court judge issued a judicial subpoena at the juvenile's attorney's request, directing the assistant principal to produce "the names, addresses and telephone numbers of each student and non students who were in the classroom." (id. at 1043)

The Court of Appeals held that the issuance of this subpoena was improper. It found that "the function of this subpoena was to locate all eyewitnesses." (id. [emphasis original]) This was the information that the juvenile's attorney was "required to unearth . . . through his own investigation" and not by employing a subpoena (id.) The Court firmly established that the standard to be applied in issuing subpoenas is whether the subpoena seeks "to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding." (id. [internal citation omitted] [emphasis added]) While no court has applied this standard specifically to subdivision four of Civil Rights Law § 50-a, several courts that have examined the other provisions of § 50-a have adopted this standard (see e.g. People v. Perez, 44 AD3d 417 [1st Dept 2007] [in a buy and bust case, the undercover officer's disciplinary records contained nothing that was "relevant and material" and could not be compelled to be produced under Civil Rights Law § 50-a]; People v. Hall, 243 AD2d 651, 651 [2d Dept 1997] ["Contrary to the defendant's contention, the trial court properly denied his application to review the personnel files of the police witnesses since he failed to present 'some factual predicate' supporting such disclosure"]).

The People claim that the defendant's employment records contained "relevant and material" information including, for instance, the results of the investigation completed by the New York State Police, defendant's statements about this case, and other prior bad acts that the People may use to cross-examine the defendant at trial. The Court is not persuaded by the People's argument. As a threshold matter, the quality of the subpoenaed material is questionable because, even as the People recognize, it may not have been usable at trial under Garrity (385 [*5]US 493).[FN2] Moreover, the People in this county prosecute a vast majority, if not all, of the drunk driving cases without seeking the defendants' employment records. The People's duty to investigate a DWI case does not entitle them to the entirety of the defendant's employment record spanning over his whole career as a State trooper. The People do not indicate that their subpoena duces tecum was narrowly tailored to the defendant's arrest and his employer's investigation. In fact, while the Court has not seen the People's subpoena, New York State Police's response letter in the court file indicates that even the records from the defendant's background check prior to his commission as a State trooper was requested.

It is unquestionable that under Terry D. and in the context of a DWI prosecution, the People should be able to pinpoint information that is "relevant and material to the facts at issue" — rather than the need for information about the defendant or other potential misconduct by him or other officers (Terry D., at 1043; see also Matter of A'Hearn v. Comm. On Unlawful Practice of Law of NY County Lawyers' Assn., 23 NY2d 916, 918 [1969] ["It is ancient law that no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum"]). Absent such a showing, the inescapable conclusion is that this defendant was vulnerable to the People's probe solely because of his employment status as a police officer. This runs afoul to the clearly stated legislative intent behind the enactment of Civil Rights Law § 50-a, which was to "prevent the use of records — including unsubstantiated and irrelevant complaints of misconduct — as a means of harassment and reprisals" (Prisoners' Legal Servs. of New York v. New York State Dept. of Correctional Servs., 73 NY2d 26, 31 [1988]). Thus, the People's use of Civil Rights Law § 50-a (4) in this case was improper.[FN3]

The final question is whether this misconduct is so egregious that it requires a dismissal of the charges against the defendant. While the prosecutor abused his authority under Civil Rights Law §50-a (4), the Court finds that he did so without malice or ill will. The prosecutor notified defense counsel as soon as he was in receipt of the subpoenaed materials and e-mailed a copy of the documents to the defense attorney. It appears that he took careful steps not to impinge upon the defendant's rights under Garrity. The prosecutor may have been given the subpoenaed materials from the court clerk. When the Court ordered the documents to be [*6]destroyed, he did so promptly without any undue delay. Even defense counsel acknowledges that the prosecutor's subpoena was not sent in bad faith (Defendant's Motion to Dismiss, ¶ 26). Further, no prejudice resulted. The defendant's employment records are destroyed and precluded from further use by the prosecutor at trial in his case-in-chief. Thus, it cannot be said to have risen to the level of "exceptionally serious misconduct" (CPL § 210.40 [1] [e]; People v Sergio, 16 Misc 3d 1127 [A] [Sup Ct, Kings County 2007] [prosecutor's disclosure of the substance of the defendant's grand jury testimony was not an "exceptionally serious misconduct" requiring dismissal]; see also Natal, 75 NY2d at 385 [district attorney's misuse of a subpoena does not require reversal of the defendant's conviction]; People v. Warmus, 148 Misc 2d 374, 380 [Westchester County Ct 1990] [precluding use of evidence in the prosecutor's case-in-chief when the it was gathered by misuse of subpoena power]).

For the foregoing reasons, the Court rejects the defendant's primary argument for dismissal. Even so, it has conducted the ten-factor test enumerated in CPL § 170.40(1) to determine if dismissal is still warranted. The following constitutes this Court's analysis:

(a) The seriousness and circumstances of the offense:

The defendant is charged with Driving While Intoxicated and Driving While Ability Impaired. The defendant does not dispute the seriousness of these offenses. However, he asks the Court to consider the circumstances of his arrest. He contends that nobody observed him operating the motor vehicle and when the police arrived, he was in a parked vehicle fully reclined in his seat. This is an issue of fact that must be resolved at trial and the Court will not engage in factfinding at this stage of the case.

(b) The extent of harm caused by the offense:

Although the defendant did not cause any personal or property damage, "alcohol-related driving creates a substantial risk of harm to the public" (People v. Jones, 53 Misc 3d 1209 [A], at *2 [Crim Ct, NY County 2016]; see also People v. Kelley, 141 AD2d 764, 765 [2d Dept 1988] ["Driving while intoxicated is not a victimless crime . . . . Rather, it is an offense against the society as a whole. This court has long recognized that '[a]n intoxicated person who operates an automobile on a highway is a menace to the public. He exhibits no regard for the safety of his fellow man'"] [internal citation omitted]).

(c) The evidence of guilt, whether admissible or inadmissible at trial:

There seems to be an overwhelming amount of evidence against the defendant. The defendant was found sleeping inside of a motor vehicle with the engine running. The car was parked at an unusual angle and was blocking a driveway. The responding officers observed the defendant to have bloodshot, watery eyes and an odor of alcohol beverage on his breath. The defendant submitted to a chemical test, which registered a reading of .16 per centum by weight of alcohol in the blood. The defendant argues that he was not "operating" the motor vehicle as he was fully reclined in his seat when the police observed him. However, one of the noticed statements made by him to a responding police officer was, "I'm waiting for parking because I'm going home."

(d) The history, character and condition of the defendant:

The defendant is a New York State trooper. He asserts that he has an "admirable service record" and that "[h]is disciplinary history with his employer is de minimis" (Defendant's Motion to Dismiss, ¶ 29). However, he has not submitted any documents to support this claim. His employment records that came into the Court's possession by way of the People subpoena were destroyed by the Court and the Court did not review them.

(e) Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant:

The Court holds that the prosecutor's use of Civil Rights Law § 50-a (4) under the circumstances of this case was improper. However, that misconduct did not rise to the level of exceptionally serious misconduct warranting dismissal (see supra).

(f) The purpose and effect of imposing upon the defendant a sentence authorized for the offense:

A penalty authorized by the law if found guilty would serve to deter a repeat offense by this defendant and deter the general public from engaging in drunk driving.

(g) The impact of a dismissal upon the confidence of the public in the criminal justice system:

Based on the allegations in this case, dismissal in this case would undermine the public's confidence in the criminal justice system especially in light of the fact that the defendant is a state trooper.

(h) The impact of a dismissal on the safety or welfare of the community:

Absent some compelling factor other than the prosecutor's misuse of the subpoena which proper measures were taken to remedy the harm, a dismissal in this case would erode public confidence in the judicial system. While the defendant may not be harmed by his employment status as a State trooper, neither must he benefit (see People v. Snowden, 160 AD3d 1054 [3d Dept 2018] [it was abuse of discretion to dismiss in the interest of justice the indictment charging the defendant, who was a village code enforcement officer, with bribery and related offenses]).

(i) The attitude of the complainant or victim with respect to the motion:

There is no complainant or victim.

(j) Any other relevant fact indicating that a judgment of conviction would serve no useful purpose:


Having thus concluded the ten-factor test pursuant to CPL § 170.40 (1), the Court denies the defendant's motion to dismiss in the interest of justice.

This constitutes the decision and order of this Court.

Dated: December 4, 2018

Bronx, New York


Hon. Tara A. Collins Footnotes

Footnote 1: The People may also, of course, derive their subpoena power from the grand jury (see CPL § 190.50 [3]).

Footnote 2: This is why the best practice going forward may be to alert the Court before the issuance of the subpoena.

Footnote 3: It deserves some mention that the subpoenaed materials were sent to the court and they were, in turn, provided to the People. The Court notes that it is unaware if those documents were reviewed by a judge as a different judge presided over this case then. Even if the materials had been reviewed by another judge, that decision to turn over the materials to the People would not be binding on this Court under the law of the case doctrine (People v. Grant, 42 Misc 3d 1236[A], n2 [Crim Ct, Kings County 2014], citing People v. Berkowitz, 50 NY2d 333, 348-49 [1980]; People v. Reyes, 43 Misc 3d 1225[A], n.3 [Crim Ct, NY County 2014]; People v. Portorreal, 28 Misc 3d 388, n.3 [Crim Ct, Queens County 2010] ["Since this is the first time that the issue has been addressed in a written motion, with notice and opportunity for response, the matter cannot be said to have been fully and fairly litigated before now"]).