Judge hears arguments in clash over Nassau police disciplinary records, DWI cases

A state Supreme Court justice delivered a win to Nassau County officials, police and prosecutors Thursday in the first round of their battle with a District Court judge who ordered that drunken-driving defendants should get all disciplinary records of officers who may testify against them.

Justice Roy Mahon said he would issue a temporary restraining order that is expected to prevent Nassau District Court Judge Andrew Engel in the short term from blocking prosecutors' efforts to proceed with cases when they haven't disclosed all those records.

County officials have argued that Engel's legal stance put 143 drunken-driving cases at risk of dismissal because he wouldn't allow prosecutors to proceed toward trial without the records. Prosecutors generally only have 90 days to be ready for trial after a misdemeanor case starts. After that, a defendant can ask a judge to dismiss the charge for a violation of "speedy trial" law.

"This case poses a conundrum to the court," Mahon said Thursday, when rendering a ruling after a virtual hearing.

He also called it a "challenging" case that in many respects had no precedent. Mahon then ordered litigants to file paperwork with further arguments and set Jan. 20 as the next court date.

A county spokesman said later that officials don't comment on pending litigation.

N. Scott Banks, the attorney-in-chief for the Legal Aid Society of Nassau County, said Mahon's ruling "will create a logjam in the court." His agency represents one of the involved DWI defendants, and he previously expressed support for Engel's stance.

Engel ruled that a 2020 reform governing discovery — evidence exchanged between the prosecution and defense before a defendant’s trial — 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."

He has said defendants should have access to the complete disciplinary files of officers, particularly because of the repeal of Civil Rights Law 50-a — which previously let police agencies block the release of disciplinary records.

The controversy heated up after Nassau Police Commissioner Patrick Ryder, former Nassau acting District Attorney Joyce Smith and county officials filed a lawsuit against Engel on Nov. 30 that's known as an Article 78 proceeding. Such litigation asks a judge to review a decision of a state official that is alleged to be unlawful.

The county has argued Nassau police don't have to disclose disciplinary files if the documents in the records are unrelated to a defendant's pending criminal matter.

Court records show the petitioners also want Engel prohibited from ordering them to disclose misconduct allegations in cases where an officer was exonerated, or if a complaint resulted in an "unfounded" or "undetermined" outcome. An "undetermined" outcome means there wasn’t enough evidence to prove or disprove an allegation, while the other two findings indicate an officer was cleared.

Attorney Donna Aldea, whose law firm represents Engel, said during Thursday's hearing that granting a temporary restraining order would be "unprecedented" and have a "chilling effect" on the court system.

She argued that Article 78 litigation wasn't the proper way to settle the dispute, because the petitioners were asking Mahon to issue a blanket order preventing Engel from ruling a particular way — not to just review a particular decision Engel had issued.

Aldea contended the petitioners had other legal remedies if they objected to Engel’s position. She said Engel had offered in one of the cases before him to sign a subpoena demanding that police turn over records, but prosecutors chose not to ask for one.

But Deputy County Attorney Laurel Kretzing said before Mahon's ruling that prosecutors "cannot proceed before Judge Engel because of the blanket positions he's taken" and "what he expects is not within his authority to order."

A prosecutor who took part in the hearing indicated Nassau District Attorney Anne Donnelly, who took over for Smith on Jan. 1, would become a petitioner in the case.