New York State Court of Claims

New York State Court of Claims

VERA v. THE STATE OF NEW YORK, #2004-016-072, Claim No. 102187, Motion No. M-69176


Synopsis


Motion for order requesting production of documents from NYPD was granted.

Case Information

UID:
2004-016-072
Claimant(s):
JOHN VERA
Claimant short name:
VERA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102187
Motion number(s):
M-69176
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Fred Lichtmacher, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet Polstein, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 22, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion for an order requiring the production of certain documents from the New York City Police Department Internal Affairs Bureau. Defendant joins in the motion. The Police Department was served with the motion, but did not respond. The underlying claim is for unjust conviction and imprisonment under §8-b of the Court of Claims Act. On February 6, 1995, claimant John Vera was convicted of five counts of Burglary in the First Degree; six counts of Robbery in the First Degree; four counts of Robbery in the Second Degree; and two counts of Assault in the Second Degree. The complainants in such case had been robbed and assaulted by a group of intruders and claimant was convicted after he was identified by certain of the victims.

According to claimant's motion papers, in November of 1999, the Internal Affairs Bureau was conducting an investigation into the possible involvement of a police officer in robberies in the 90th precinct. In the course of the investigation, one Anthony Mann confessed to having been a member of a gang that committed the offenses for which Mr. Vera had been convicted. Mann identified the members of the gang and claimant was not one of them. According to Mann, the police officer who was being investigated had supplied guns and walkie talkies for the crime in return for a share of the proceeds.

Claimant subsequently petitioned for a Writ of Habeas Corpus, and on January 27, 2000, was released from custody. On February 2, 2000, claimant moved pursuant to CPL §440.10(g) for an Order vacating his conviction and on February 10, 2000, the motion was granted.

As part of his discovery for this claim, on January 13, 2004, claimant served a subpoena on the New York City Police Department Internal Affairs Division, seeking the following documents:
certified copies of all tape recordings, including tape M99/0193, records and documents pertaining to the investigation of the information provided by Antonio Cepeda and Anthony Mann concerning the robbery of 1-6-94 at 340 South Third Street, Brooklyn, New York.


In response to the subpoena, the New York City Police Department Legal Bureau sent the Court a January 15, 2004 letter objecting to the subpoena on the following grounds, that: (1) it was not made on motion with notice to the NYPD pursuant to CPLR 3120.4; (2) it was vague and overly broad; (3) claimant must pay for the costs of producing the documents pursuant to CPLR 3122(d); (4) the subpoena was returnable in less than 20 days, in violation of CPLR 3120.2; and (5) to the extent documents in any officer's personnel file are responsive to the subpoena, they are subject to Civil Rights Law §50-a, which requires a hearing on notice to such officer. The Police Department did not oppose this motion, but the arguments contained in its January 15, 2004 letter are considered, below.
* * *
With regard to CPLR 3120.2 and 3120.4, such have now been complied with as this motion was made on notice to the NYC Police Department (and was served 20 days prior to the return date).

As to the request being vague and overly broad, aside from general assertions of same, the only specific complaint by the Police Department is that, "[f]or example, [claimant's] request is so broad counsel has requested documents that are considered part of the Officer's confidential personnel file . . ." To the extent the documents sought are contained in personnel files, such issue is addressed below. Otherwise, I find that the request for documents is sufficiently narrow.

As to CPLR 3122(d), claimant acknowledges that it must pay for the costs of production.

Finally, with regard to personnel files, §50-a of the Civil Rights Law provides in relevant part that:
1. All personnel records . . . under the control of any police agency or department of the state . . . 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.

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

3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.

. . .


As set forth below, to the extent that the requested documents encompass documents contained in the personnel file of any police officer, the Court can be apprised and a hearing pursuant to §50-a scheduled, with notice to such officer.

In view of the foregoing, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-69176 be granted to the extent that:
  1. Within thirty (30) days of the filing of this Decision and Order, claimant shall personally serve the New York City Police Department with this Decision and Order;
  2. Except as set forth in paragraph 3 below, within ninety (90) days of service on it of this Decision and Order, the New York City Police Department shall produce to claimant certified copies of all tape recordings, including tape M99/0193, records and documents pertaining to the investigation of the information provided by Antonio Cepeda and Anthony Mann concerning the robbery of January 6, 1994 at 340 South Third Street, Brooklyn, New York;
  3. To the extent that any responsive documents are contained in the personnel file of any police officer, such documents shall be withheld and the Court shall be notified, within ninety (90) days of the filing of this Decision and Order, of the existence of such documents and with the name(s) of the police officer(s) in question, so that the Court may arrange for hearing(s) pursuant to §50-a of the Civil Rights Law; and
  4. To the extent the New York City Police Department seeks payment for production of documents to claimant, it shall make appropriate arrangements with claimant regarding same.

November 22, 2004
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed claimant's notice of motion with affidavit in support and exhibits A through I; and defendant's September 29, 2004 letter joining in claimant's motion. The New York City Police Department did not put in any opposition papers.