People v. Montgomery

74 Misc.3d 551

159 N.Y.S.3d 655

The PEOPLE of the State of New York, Plaintiff,

v.Brighton MONTGOMERY, Defendant.

Indictment No. 00212/2019

Supreme Court, New York County, New York.

Decided on January 12, 2022

New York County District Attorney Alvin L. Bragg (Ann-Marie Whelan, of counsel) for the People.

The Legal Aid Society by Janet Sabel Esq. (Francis K. White, of counsel) for the Defendant.

Daniel Conviser, J.

The Defendant is charged with Murder in the Second Degree. He moves here to compel the People to produce through discovery police disciplinary records for testifying witnesses maintained by the New York City Civilian Complaint Review Board (the "CCRB") and the New York City Police Department (the "NYPD") ("police disciplinary records") which have been classified by these agencies as "unfounded" or for which officers were "exonerated". The defense seeks some of these records in summary form and some complete records. The People contend they are not required to provide any information regarding exonerated or unfounded allegations. For the purpose of this motion, the Court has presumed that at least some of these records would concern alleged conduct which would be relevant to officer credibility, rather than only minor administrative infractions which would not be proper subjects for cross-examination. For the reasons outlined here, the Defendant's motion is denied.

The dispute here is one which is being litigated in numerous New York trial courts for which there is not yet appellate authority. The People have agreed to provide the defense with police disciplinary records concerning "substantiated", "pending" and "unsubstantiated" allegations.

The CCRB and NYPD have similar definitions for these terms. The People note that the CCRB defines a "substantiated" allegation as one where "there was a preponderance of the evidence that the acts alleged occurred and constituted misconduct". An "unsubstantiated" allegation means "there was insufficient evidence to establish whether or not there was an act of misconduct". An "exonerated" allegation occurs when "there was a preponderance of the evidence that acts alleged occurred but did not constitute misconduct." Finally, an "unfounded" allegation means "there was a preponderance of the evidence that the acts alleged did not occur." People's Affirmation, p. 4, citing 38 NYCRR § 1-33.

The provision of New York's discovery statute at issue here requires the production of "[a]ll evidence and information ... that tends to ... impeach the credibility of a testifying prosecution witness". CPL 245.20 (1) (k). The disputed records are not directly related to the charges in this case. They concern alleged incidents which might impeach witness testimony based on an officer's conduct in other cases. The statutory construction question on this motion, as other courts have observed, is whether "exonerated" and "unfounded" records would tend to impeach the testimony of these officers.

More precisely the question primarily hinges on the meaning of the word "tends", that is whether exonerated or unfounded allegations "tend to" undermine the credibility of testifying police officers. The word "tends" has been defined as "to exhibit an inclination or tendency" (Mirriam-Webster online dictionary) or "to be disposed or included in action, operation, or effect to do something". (Dictionary.com).

Most trial courts which have considered this issue have apparently agreed with the People's and this Court's position here. In what is perhaps the leading case supporting that view, People v. Randolph , 69 Misc. 3d 770, 772, 132 N.Y.S.3d 726 (Sup. Ct., Suffolk County 2020) the court held that with respect to exonerated or unfounded allegations "there is no good faith basis for cross-examination by the defendant's counsel". See also , People v. Kelly , 71 Misc. 3d 1202 (A), 2021 WL 1182333 (Crim. Ct., N.Y. County 2021) (adopting the same rationale); People v. McKinney , 71 Misc. 3d 1221 (A), 2021 WL 2006850 (Crim. Ct., N.Y. County 2021) ; People v. Davis , 70 Misc. 3d 467, 134 N.Y.S.3d 620 (Crim. Ct., Bronx County 2021) ; People v. Williams , 73 Misc.3d 1091, 157 N.Y.S.3d 877 (Sup. Ct., Kings County 2021) (unsubstantiated, exonerated or unfounded allegations not required to be provided in discovery).

The contrary position was explored in an extended thoughtful opinion in People v. Portillo , 73 Misc. 3d 216, 228, 153 N.Y.S.3d 758 (Sup. Ct., Suffolk County 2021). There, among other points, the Court argued that "[i]t is the nature of the allegation itself which establishes a good faith basis to impeach, and the credibility assessment of an IAB official [an official of the Suffolk County Police Department's Internal Affairs Bureau] may not impact whether the information should be turned over". To further develop this argument, exonerated or unfounded determinations arise from allegations which obviously were deemed sufficient to result in an inquiry or investigation. Those allegations provide a good faith basis to question officers regarding them regardless of whether an administrative agency has determined they are insufficient.

This Court agrees with the People's position here, but also believes that the oft-cited rationale for not providing exonerated or unfounded police disciplinary records — that they do not provide a good faith basis for cross-examination -- is lacking. In this Court's view, the Portillo court's position on that issue is closer to the mark. Exonerated or unfounded records are not required to be produced not because they fail to provide a good faith basis for impeachment. They may. Such records are not required to be produced under New York's discovery law because they do not actually tend to impeach the police witnesses they may be used against, a different question. The Defendant here succinctly summarized what is perhaps the most important foundational principle behind the views on both sides of this debate: "[I]f there is a right to use the information to impeach, there is a right to disclosure from the prosecution and police". Defendant's Affirmation, ¶ 12 (emphasis in original). This Court disagrees. In this Court's view, a "good faith basis" to pose an impeachment question requires a lesser showing than a determination that information in a police disciplinary record would "tend to impeach". The two standards are not equivalent. It is the higher standard, that the information would tend to impeach, which is at issue under New York's discovery statute.

It has been held that an acquittal in a court proceeding, or a dismissal of a judicial proceeding on the merits, negates any good faith basis for questioning a witness about an alleged criminal act and may properly bar cross-examination. People v. Padilla , 28 A.D.3d 365, 812 N.Y.S.2d 530 (1st Dept. 2006), lv denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 ; People v. Jones , 24 A.D.3d 815, 805 N.Y.S.2d 169 (3rd Dept. 2005), lv denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799; People v. Plaisted , 2 A.D.3d 906, 767 N.Y.S.2d 518 (3rd Dept. 2003), lv denied 2 N.Y.3d 744, 778 N.Y.S.2d 470, 810 N.E.2d 923 (2004) ; People v. Vidal , 26 N.Y.2d 249, 309 N.Y.S.2d 336, 257 N.E.2d 886 (1970). This Court is not aware that the same bar has been applied, however, where alleged misconduct was found lacking in an administrative proceeding. As the Defendant argues, there are good reasons to draw a distinction between judicial proceedings, with all of their requisite due-process and transparency, and administrative determinations made by a multitude of local police agencies which may not have such attributes.

In this Court's view, therefore, the argument that unfounded or exonerated findings are not subject to discovery because they do not provide a good faith basis for impeachment questions is unpersuasive. See generally, People v. Smith , 27 N.Y.3d 652, 662, 36 N.Y.S.3d 861, 57 N.E.3d 53 (2016) (cross-examination may be permitted where lawsuits allege a police officer engaged in misconduct "based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness"); People v. Rouse , 34 N.Y.3d 269, 277, 117 N.Y.S.3d 634, 140 N.E.3d 957 (2019) ("A ‘good faith basis’ requires only that counsel have some reasonable basis for believing the truth of things about which counsel seeks to ask" (internal quotations omitted); New York Guide to Evidence Rule 6.16, Impeachment of a Law Enforcement Officer, Note, subdivisions (3) (b) & (c) (outlining case law regarding law enforcement officer impeachment and noting that the proper scope of police disciplinary records discovery "remains unsettled"). In this Court's view, a defense attorney might have "some reasonable basis for believing the truth" of an allegation, and thus have a good faith basis for an inquiry, even if a local police department investigating its own officer asserted the officer had done nothing wrong. As one federal appeals court explained the principle, "an attorney does not need definitive proof to have a good faith basis, just a well reasoned suspicion that a circumstance is...