Dispute over police misconduct files in Nassau pits the DA's office against police dept.

The Nassau County Police Department is refusing to hand over disciplinary records to Nassau District Attorney Anne T. Donnelly’s office in criminal cases ranging from third-degree assault to murder, creating a rift between prosecutors and the police.

In more than a handful of criminal prosecutions in county and district courts, the police department has refused to produce documented complaints against the officers — substantiated and unsubstantiated — forcing prosecutors to subpoena the records. In those cases, the county’s three major law enforcement unions have intervened to stop them, defying court orders.

The refusal by the police to turn over the files has caused at least one criminal case to be dismissed. It has also undermined the authority of the district attorney, the chief law enforcement officer in the county, prosecutors and defense lawyers said. And it has contributed to slow down the administration of justice, legal eagles say.

The dispute is playing publicly in courtrooms across the county.

"We have no confidence” in the Nassau DA’s office willingness to safeguard police misconduct records from defense attorneys and their clients, PBA attorney Brian Mitchell said during a March 14 hearing to prevent the release of the records to the district attorney in a grand larceny/drunken driving case.

For their part, the prosecutors in the district attorney’s office said the department has lost sight of its essential function.

“The NCPD's refusal to provide all underlying disciplinary records essentially gambles with valid prosecutions,” Assistant District Attorney Brianna Ryan wrote in response.

At the heart of the legal fight is the 2020 criminal law called “discovery reform,” which expands the type of evidence the accused has a right to use in defense and accelerates the timeline under which the district attorney’s office has to share it. In the case of a misdemeanor, prosecutors must have turned over all discovery and be certified ready for trial in 90 days. For a felony case, they have six months.

If prosecutors fail to provide defense lawyers with the requisite evidence before the speedy-trial clock winds down, the case can be dismissed.

Case dismissed

The reluctance of the police to hand over disciplinary files has resulted in the dismissal of a third-degree assault case against Nassau resident Toufik Hamizane.

The misdemeanor case has become a precedent after an appellate court upheld the dismissal, finding that “with respect to every listed potential police witness, it was the [district attorney’s] obligation to disclose whether or not disciplinary records exist, and to provide the defense with copies of any existing records.”

Under a 50-year-old Supreme Court decision, referred to as the Brady decision, prosecutors must turn over any evidence that the accused could use in their defense. Additionally, records that fall under a second Supreme Court decision referred to as the Giglio decision that could be used to undermine the credibility of police witnesses are also “automatically discoverable” under the reform law.

This means that it has to be handed over whether the defense lawyer asks for it or not. 

Prosecutors have to certify that they've done so, and if they can't file that certificate before the trial clock runs out, the case could be dismissed.

“The bottom line is that I think that our society in general and our legal system in general, is moving toward more transparency in terms of disclosure,” said Donna Aldea, head of appellate and post-conviction litigation at Barket Epstein in Garden City. “Police officers are witnesses just like any other witness, and the types of information that would be relevant to evaluating the credibility of a witness include things like what is contained in those disciplinary files.”

Additionally, the repeal of 50A, a law that kept police disciplinary records secret, has further undermined the police department’s argument.

Appellate court decisions on the four-year-old discovery reform law tend to favor more information being shared with defense lawyers.

Unions argue releases violate officers' privacy

Despite the trend, lawyers for the Nassau County Police Benevolent Association, the Superior Officers Association and the Detectives Association have filed at least seven motions in separate criminal cases trying to stop Donnelly’s office from getting the records, arguing that the release of the records violates the officers’ privacy and could jeopardize their ability to enforce that law and possibly their lives, though they admit that remains a theoretical scenario.

“That situation hasn’t happened, there’s not a record of these records being turned over and then some embarrassing or detrimental information having been released. We haven’t got to that point,” Todd said.

The unions argue that their members are lightning rods for citizen complaints.

“It is an unfortunate reality that the majority of complaints against law enforcement are baseless or false,” the detectives' union lawyer, Israel Santiago, wrote in a brief. “The unfettered release of such would be both dangerous and irresponsible.”

In 2020, the most recent year that police statistics are available, there were 372 complaints against Nassau officers. The Internal Affairs Bureau found 3.2%, or 12 accusations, were substantiated.

Newsday sued Nassau and Suffolk police departments for similar records and won in Supreme and Appellate courts. However, the departments have promised to appeal the decision.

The reformed discovery law says “all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.”

The effects on a sex trafficking case

In the sex trafficking case against Jackson Metellus, 39, a man charged with promoting prostitution, the police department blew a Feb. 2 deadline to produce paper copies of the records, instead allowing access to the disciplinary files only through a single computer terminal without giving the prosecutors the ability to print or download the records.

Todd argued that the department had complied with the district attorney’s request.

“We didn't move to quash the subpoena because we believed we were in compliance with it,” he said.

Defense lawyer Donald Rollock, a legal adviser to Mettellus who acted as his own attorney, didn’t buy the argument.

“I hear a lot of double talk on the part of the police department here,” he said. “What's happening is the police department is usurping its role and substituting its judgment for that of the prosecutor. This is where the checks and balances come into play. The legislature changed the discovery rules, and the police department may not like it. Well, too bad. They have to still follow it.”

Metellus eventually pleaded guilty to the charges.

Oddly, for an adversarial system that pits prosecutors against defense lawyers to determine a just outcome to a criminal trial, the legal rivals are on the same page.

“That the People have been forced to resort to using a subpoena to compel the police department in its own county to produce those documents does not reflect poorly on the District Attorney,” Ryan wrote, countering the police resistance in the grand larceny case. “Instead, it shows that NCPD is unwilling to surrender control over its disciplinary records, even if its refusal to do so will endanger the administration of justice.”

Acting Supreme Court Justice Colin O'Donnell denied the union's request in a ruling released Thursday in which he admonished police and prosecutors to “diligently resolve future discovery obligations consistent with his ruling.”

Judge orders files open in high-profile case

Perhaps the most high-profile instance in which the police department has thwarted the disclosure of misconduct records is the vehicular homicide case against Amandeep Singh, a Roslyn man accused of being high and drunk when his Dodge Ram collided with the Alfa Romeo carrying 14-year-olds Drew Hassenbein and Ethan Falkowitz, who were returning from a win with the Roslyn High School tennis team. Police found Singh hiding behind a trash bin, dumpster after the crash. His blood alcohol content was 0.15, nearly twice the legal limit.

Singh rejected a plea deal in which he would serve 8 to 25 years in prison, opting to go to trial in the case.

The crash prompted an enormous police response, and defense lawyers could seek to poke holes in the testimony of the officers at the scene. If any have bad conduct records that undermine the arrest or investigation, the defense has a right under the law to present that at trial.

On Friday, Acting Supreme Court Justice Helene Gugerty denied the police department's effort to quash a subpoena for the records, ordering the misconduct files to be produced on Monday.

Singh's lawyer said the information will be crucial for his defense.

“This is a case in which hotly contested issues include statements that were allegedly made by Mr. Singh, roadside as well as identification procedures arranged by the police,” Singh lawyer Edward Sapone said. “There may be very well be records in these disciplinary records that would be important for us to consider so that we can impeach these soon-to-be testifying police officers.”

A political ploy?

For Nassau former prosecutor Fred Klein, who was the major offense bureau chief and is now a Hofstra University professor, the issue boils down to politics.

“They’re making their interests stronger than the interest of the public,” said Klein about the police department's refusals. “And they are taking a position contrary to most police departments in New York state.”

He sees the dispute as an extension of the partisan divide.

“It’s a political decision,” he said. "[The Nassau County Republican Party] won the county executive election railing against bail reform. … If the county executive in Nassau County wanted the police to comply with the law, [Bruce] Blakeman would call [Nassau Police Commissioner] Pat Ryder and tell him to release them.”

Blakeman did not respond to a request for a response. Ryder denied the rift.

“The Nassau County Police Department has an excellent working relationship with the District Attorney’s Office,” he told Newsday.

CORRECTION: The quote by Nassau PBA attorney Brian Mitchell was incorrect and attributed to the wrong person in an earlier version of this story.