2004 016 072 by e8ExQFH

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									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 General
                                    By: 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’ submissions1, 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.
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.
        November 22, 2004
       New York, New York

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

								
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