75 Misc. 2d 55 | N.Y. Sup. Ct. | 1973
In this narcotics prosecution, defendant served a subpoena duces tecum of this court on the Police Department of the City of New York requiring the production of “personal records” of the two police officers who are expected to be the prosecution’s witnesses. The Police Department, through its own counsel, moved to quash the subpoena. On the argument of the motion, the, District Attorney in charge of prosecution of the case took no position.
The motion to quash is based on sections 1113 and 1114 of the New York City Charter, which the Police Department contends make such records confidential. On the argument I advised counsel that in my opinion these sections of the charter do not apply to the production of Police Department records
The Police Department thereafter produced .Police Department forms, “ Citations and Charges ”, respecting the two officers. The only notations, with respect to each officer, were citations, “ excellent ” or “ meritorious ”. In the presence of the defendant, the court so advised the attorney for the defendant, the Assistant District Attorney, and the Police Department’s attorney, and read the substance of the reports into the record and then returned the forms to the representative of the Police Department.
Defendant’s attorney, contending that this was not a sufficient compliance with the subpoena, requested a direction that all of the personnel records respecting the two officers be produced so that it could be ascertained whether there might be a basis for cross-examination of the officers as to prior “ bad acts ”, in order to impeach their credibility.
The right of á defendant to confront and cross-examine witnesses is fundamental. This includes the right to attempt to impeach the credibility of a witness by proving his prior conviction of crime and by inquiring into facts showing his general reputation with respect to truth and veracity and any immoral, vicious or criminal act which might affect his character and tend to show the. witness is not worthy of belief. (People v. Zabrocky, 26 N Y 2d 530; People v. Schwartzman, 24 N Y 2d 241, cert. den. 396 U. S. 846; People v. Alamo, 23 N Y 2d 630; People v. Sorge, 301 N. Y. 198.) As these and other cases hold, such right even extends to cross-examination by the prosecution of a defendant when he testifies in his own behalf in a criminal case. It is no secret that this is very often the only reason a defendant does not take the stand. This consequence has caused serious criticism of the rule and recent attempts to limit its impact. (United States v. Puco, 453 F. 2d 539; United States v. Palumbo, 401 F. 2d 270, cert. den. 394 U. S. 947; Luck v. United States, 348 F. 2d 763.) The considerations are the nature of the conviction or prior “bad act”, its age, its real significance in testing credibility as balanced against the need for the witness’ testimony in determining the ultimate issue of guilt or innocence. With
Although cross-examination for this purpose is subject to the sound discretion of the Trial Judge (Langley v. Wadsworth, 99 N. Y. 61), in this State it cannot be completely foreclosed. (People v. Zabrocky, 26 N Y 2d 530, supra; People v. Schwartzman, 24 N Y 2d 241, supra; People v. Alamo, 23 N Y 2d 630, supra; People v. Sorge, 301 N. Y. 198, supra; CPL 60.40; People v. Gray, 41 A D 2d 125; People v. Pritchett, 69 Misc 2d 67; People v. Palmeri, 58 Misc 2d 288; cf. contra, People v. King, 72 Misc 2d 540, as to an old prior conviction.) Although these authorities deal principally with prior convictions and the problem as it affects the rights of defendants in criminal prosecutions, the same considerations should apply to other witnesses (cf. CPLR 4513).
In exercising his discretion to limit such cross-examination, the Trial Judge must require the cross-examiner to make a good-faith showing as a predicate for such inquiry (People v. Sorge, 301 N. Y. 198, supra; People v. Alamo, 23 N Y 2d 630, supra). Defendant contends that unless he is afforded an opportunity to examine the Police Department personnel records respecting the two officers, he will be unable to make the requisite good-faith showing. The Police Department’s opposition is primarily based upon the claimed confidentiality of the records and the fact that a subpoena duces tecum cannot be used to search for evidence in the absence of some showing that such evidence exists.
Any person may be compelled to supply evidence whether verbal or documentary which may be relevant. The court is entitled to every man’s evidence. Personal convenience or personal preference is immaterial, unless it is shown that production would violate a constitutional or statutory privilege. (Matter of Edge Ho Holding Corp., 256 N. Y. 374; Matter of Ebbets, 155 Misc. 870.) In the absence of such privilege, the only question is whether the introduction of the evidence would be improper on the grounds of irrelevancy, immateriality, or incompetency. Sections 1113 and 1114 of the New York City Charter only limit discovery of Police Department records in applications made by taxpayers or citizens and not where sought by a litigant such as a defendant in a criminal prosecution whose rights are at issue.
Reports made by police officers in the regular course of their duty, unless “ exempt ” as internal documents or work papers,
. Although the section applies to property within the possession, custody or control of the District Attorney, it must follow that property in the possession of the Police Department is subject to such discovery, if not exempt, and the other conditions are met. Even where otherwise exempt, police reports and records may become discoverable and usable by the cross-examiner, if they are referred to by the witness to refresh his recollection or if they contain exculpatory material. (Brady v. Maryland, 373 U. S. 83; People v. Rosario, 9 N Y 2d 286.)
It is manifest that if the defendant through other means could ascertain whether the police officers were guilty of “ bad acts ” which might affect their credibility, he could, on an appropriate good-faith showing, cross-examine the police officers with respect thereto, just as he could examine any other witness. Police officers stand on no different footing than any other witness.
If such information is not otherwise available, may it be sought by court process? No authorities have been cited or found passing on whether a subpoena duces tecum can be used as a basis for compelling production and examination of personnel records of a witness in order to ascertain whether such records disclose a basis for an inquiry of the witness on cross-examination as to alleged prior “bad acts” which might impeach his credibility.
The right of a defendant to compulsory process to secure necessary evidence relevant to his defense is constitutionally protected unless some privilege attaches to the evidence sought.
A “public interest” privilege may inhibit disclosure. The records of the Commissioner of Investigation of the City of New York are privileged because of the need of the Commissioner to assure informants of confidentiality so as to secure needed information in the public interest. In so holding, the court said in Matter of Langert v. Tenney (5 A D 2d 586, 589):
Similar is the qualified informant’s privilege, grounded upon the need of the prosecution to obtain information from informants and to utilize their services without exposing them to intimidation, physical harm or other reprisal and to avoid interference with continuing investigations. (Roviaro v. United States, 353 U. S. 53; McCray v. Illinois, 386 U. S. 300; Pecue v. West, 233 N. Y. 316; People v. Goggins, 42 A D 2d 227; People v. Delgado, 40 A D 2d 554.)
This public interest privilege is qualified -and measured by the balance of convenience between the government’s need to withhold évidenee which might be prejudicial to the public interest because concerned either with the administration of penal justice or the administration of the government and its weight, usefulness or value to the defendant in his defense. Where public safety is not involved, the privilege does not apply. (People ex rel. Heller v. Heller, 184 Misc. 75.)
Thus, the records of a District Attorney involving criminal proceedings are available, even in a civil action, in the absence of statutory or judicial privilege or exemption, although examination of such records was required to be subject to court supervision. (Cohalan v. Newsday, 228 N. Y. S. 2d 504.)
There is obviously a public interest in insuring that the Police Department will conduct thorough investigations of the background of police officers before they are appointed, and will maintain continuing records of their performance of duty and of complaints against them and of departmental action with respect thereto. It is obvious that such records should be available only to those who have a need to know their contents for the purpose for which they are maintained. There is undoubtedly a similar private interest with respect to nonpublic employees.
However, it is not necessary to decide this broader issue. As defendant argues, his own private life has become an open book. The Police Department, in the course of its investigation, has undoubtedly obtained evidence respecting his entire background and activities, including his criminal record, which will be utilized against him if he takes the stand. The same is undoubtedly true with respect to any witness known to the police. It is palpable that such evidence is not ordinarily obtained primarily to impeach credibility, but as part of the Police Department’s routine in performing its duty to investigate crime and those suspected of criminal activity. Nonetheless it' may be and is used to attack credibility. This suggests that the defendant is entitled to an equal opportunity to obtain such data. In "this context it is evident in recent holdings and statutes that there is a growing recognition of the propriety of requiring mutual disclosure between the prosecution and the defense. Thus the Oregon and New York notice-of-alibi statutes have "been held unconstitutional or modified in application because they do not provide for reciprocal rights, (Wardius
Moreover, it must be recognized that in the usual narcotics prosecution such as this, the prosecution’s evidence will largely consist of the testimony of police officers, and the defense evidence, if any, will solely be the testimony of the defendant. Verdicts in such cases in the main turn on the question of credibility. There is undoubtedly a duty on the part of the prosecution to make known any exculpatory evidence in its possession. This would include criminal records of the prosecution’s witnesses or other matter going to their credibility. (Jencks v. United States, 353 U. S. 657; People v. Rosario, 9 N Y 2d 286, supra; People v. Fein, 18 N Y 2d 162, 172.)
It must be held, therefore, that where a public officer such as a policeman is called as a witness, in the performance of his public duty, there is a duty on the prosecution to make available to the court any information in its possession or in the Police Department’s possession which might go to the issue of the defendant’s guilt, including evidence affecting the credibility of such officer. The court cannot, by quashing the subpoena, preclude the possibility of defense discovery of such evidence, if it exists.
“ Only where the futility of the process to uncover anything legitimate is inevitable or obvious must there be a halt upon the threshold.” (Matter of Edge Ho Holding Corp., 256 N. Y. 374, 382, supra.)
The question cannot be ascertained by motion to quash. It can only be determined upon the trial. However, similar to the procedure respecting informants, it is appropriate that such records not be made available to counsel, in the first instance. They should be produced to the Trial Judge, who can examine the records and in the exercise of discretion determine their relevancy under the circumstances of the trial.
Accordingly, the motion of the Police Department to quash the subpoena is denied. The Police Department is directed to produce the personnel records of the two officers involved to the Trial Judge sealed, for examination and determination by such Judge whether any information contained in such records should be made available to counsel for the defendant in aid of cross-examination to impeach credibility or for other purposes.
A copy of this order is to be served on the Police Department.
