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Nassau judge, police spar over providing disciplinary records

Nassau County Police department conducts a DWI checkpoint

Nassau County Police department conducts a DWI checkpoint on Hempstead Turnpike in Levittown on Jan. 1, 2014. Credit: Kristy Leibowitz

More than 140 pending drunken driving cases and future cases could be dismissed in Nassau County as police and prosecutors battle a judge over his rulings that the defendants should get the full disciplinary records of officers who may testify against them, according to court filings.

Nassau County Police Commissioner Patrick Ryder, former Acting District Attorney Joyce Smith and county officials have sued District Court Judge Andrew Engel in what’s known as an Article 78 proceeding. The petitioners are trying to compel Engel to reverse his decision that all the records must be shared under a 2020 law governing the disclosure of discovery — evidence prosecutors exchange with the defense before a trial.

Without the full records, the judge won’t consider the prosecution ready for trial. That means the cases Engel is presiding over are at risk of dismissal if the stalemate continues because of a "speedy trial" law, according to filings in the case. The law generally gives the district attorney’s office 90 days to be ready for trial after the start of misdemeanor cases that carry potential punishments of more than three months in jail. District courts handle misdemeanor cases for trial.

The lawsuit follows Engel's rulings that state legislative reforms that include the 2020 repeal of Civil Rights Law 50-a — which allowed police agencies to block the release of disciplinary records — dictate that all documents from such proceedings be disclosed to defendants.

Engel wrote in an August decision that the 2020 law concerning discovery created "a presumption in favor of disclosure" of all evidence and information, including that which tends to "impeach the credibility of a testifying prosecution witness."

The judge added that the prosecution’s obligation included turning over "any record created in furtherance of a law enforcement disciplinary proceeding," saying that was the case "particularly in light of the repeal of Civil Rights Law 50-a."

The petitioners have argued that the Nassau County Police Department doesn't disclose personnel files unless specifically directed to do so "in the interest of employee privacy based on its collective bargaining agreement with its officers." Police say there are disclosure exemptions under the Freedom of Information Law that remain unchanged by 50-a's repeal.

Meanwhile, prosecutors say they can't hand over records they don't have. The petitioners also claim it is up to prosecutors to evaluate what evidence tends to challenge a witness' credibility before disclosing it.

Deputy County Attorney Laurel Kretzing argued in court papers that the safety of Nassau residents who "may be harmed and killed by criminal defendants" is threatened by Engel’s potential dismissal of cases and that disclosing complete disciplinary records would "interfere with the rights" of Nassau police officers.

Attorneys for the county also wrote that "approximately 143 criminal prosecutions" and any future cases that may go to Engel — who handles drunken driving cases — "are imperiled."

A court filing from Smith’s general counsel, Jed Painter, added that prosecutors typically handle about 2,000 DWI cases a year and because it would take about two years for any single case appealed from Engel’s court to be decided, thousands of other cases "would be subject to dismissal" during that time.

But Engel's attorney, Steven Epstein, said: "The bullying tactics cannot stop justice. The police and the DA’s office have to follow the law like everybody else … The issue is bigger than 143 cases and that’s only because of the failure to turn over the discovery that’s required by law … How about figuring out how to comply with it and turn over the disciplinary records of the police officers?"

Engel, 67, is a Democrat from East Meadow who has served in District Court since 2007.

Legal Aid Society of Nassau County Attorney-in-Chief N. Scott Banks said his agency, which represents at least one of the DWI defendants, intends to defend Engel’s position.

"For the prosecutor and police to hide behind this and say, ‘Oh, Judge Engel, you dismissed this case. You are affecting public safety.’ I think that’s outrageous," he added.

Banks said he believes the issue ultimately will have to be resolved in the Court of Appeals, New York’s highest court. "This is part of the District Attorney and the Police Department’s assault on the repeal of 50-a and changes in discovery," he added.

Mineola lawyer and former prosecutor William Shanahan, who represents one of the 143 defendants, said that "based upon the spirit of the law, the judge is absolutely correct and the records should be turned over to the defense attorneys."

Ryder, Smith and county officials are asking a state Supreme Court justice to prohibit Engel from requiring them to provide full disciplinary files for all testifying police witnesses. They also want Engel blocked from preventing prosecutors from declaring their readiness for trial just because those records haven’t been turned over.

In addition, they have asked for a temporary restraining order that would keep Engel from rejecting notices that prosecutors have filed declaring trial readiness while the final judgment in the case against him is pending.

"We filed this action to ensure compliance with our discovery obligations. We continue to collaborate closely with our police partners and look forward to the court’s action to clarify the law," said Brendan Brosh, a spokesman for the Nassau district attorney’s office.

NCPD spokesman Det. Lt. Richard LeBrun said the department "is unable to comment due to pending litigation." A spokeswoman for the county attorney's office also said it was policy not to comment on such matters.

Police and prosecutors are seeking a ruling that they don’t have to produce full disciplinary records of police witnesses to defendants if the documents in the records are unrelated to the pending criminal matter, or if the records relate to misconduct allegations in cases where an officer was "exonerated" or the complaint resulted in an "unfounded" or "undetermined" outcome during internal police proceedings.

Exonerated means an incident occurred and the officer’s actions were justified, unfounded means an allegation was found to be false, and undetermined means there wasn’t enough evidence to prove or disprove the allegation, according to a case filing from attorney Christopher Todd, deputy chief of NCPD’s Legal Bureau.

The court battle also has exposed apparent friction between police and prosecutors.

While the acting district attorney joined in the Article 78 proceeding, which was filed with the county clerk's office on Nov. 30, a filing in the case paperwork says her office "made blanket requests of police partners for the records, which have been opposed."

Then with the Article 78 case pending, the district attorney's office separately filed a Dec. 7 motion in District Court asking Engel to compel Nassau police to produce the complete police disciplinary files.

The motion said prosecutors hadn’t been able to get the records despite "substantial good faith efforts" and had "no recourse but to seek the Court’s aid." The judge rejected the motion because it was improperly filed, according to Epstein.

A transcript from a past proceeding in Engel's court also highlighted differences between police and prosecutors on the records issue.

"So your office would like to blame the Nassau County Police Department," Engel told an assistant district attorney in October. "And, in fact, I have seen papers from your office weeping about, oh, my goodness, the police don’t cooperate with us."

The judge went on to say that the discovery law "not only puts the onus on police" to turn over records to prosecutors but requires individual assistant district attorneys assigned to each case to get them. He also said both police and prosecutors needed to recognize 50-a had been repealed.

"The police don’t like it, but that is the law. They are a law enforcement agency, which means like everybody else, they have to abide by the law, and if they don’t, your cases are going to suffer," Engel told the prosecutor.

Emails between officials at the district attorney's office and police department also suggest a tug-of-war between the agencies.

In a November email, Todd, the police attorney, said a May memorandum of agreement between the agencies requires prosecutors to "oppose or otherwise insulate" any police records that prosecutors don’t believe have to be legally disclosed.

But Painter, Smith's general counsel, replied that the agreement was "wholly dependent on evolving case law" and his office "had exhausted its efforts to oppose and insulate as far as Judge Engel."

On Dec. 8, Kretzing, the deputy county attorney, warned in a letter to state Supreme Court Justice Roy Mahon, who is assigned to the case, that if he didn’t grant "an immediate stay," more than half of the 143 cases could be dismissed.

Paul Lamanna, the district executive for Nassau’s state court district, said Mahon is scheduled to hold a proceeding on Thursday.

Three other Nassau judges have issued rulings that support the position that prosecutors don’t have to turn over records that aren’t in their possession, while a fourth judge has taken Engel’s position, according to a case filing from the petitioners.

The court paperwork also indicates there aren’t any appellate rulings on the records issue yet, but a Suffolk County case involving identical legal issues is pending in a Brooklyn appellate court.

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