Nassau police deny DA’s request for disciplinary records in criminal cases

Nassau police deny DA’s request for disciplinary records in criminal cases
Nassau County District Attorney Anne Donnelly. (Photo courtesy of District Attorney Anne Donnelly)

The Nassau County Police Department has been pushing back on requests to provide disciplinary records to District Attorney Anne Donnelly’s office, impacting numerous case proceedings and resulting in at least one case being dismissed.

“Law enforcement agencies who wield considerable power of the state over individuals have a responsibility to be transparent and accountable,” said Susan Gottehrer, director of the Nassau County New York Civil Liberties Union. “And yet the actions of the Nassau County Police Department continue to illustrate their belief that they answer to no one.”

Newsday reported that the Police Department has refused to hand over records of substantiated and unsubstantiated complaints against officers in “more than a handful” of criminal cases being prosecuted.

This therefore leads the DA’s office to subpoena the records, which are further challenged by the law enforcement unions seeking to defy the court orders.

This has led to at least one criminal case being dismissed, Newsday reported, playing out in the third-degree assault case against Nassau resident Toufik Hamizane.

It has also undermined the authority of the legal and law enforcement systems and slowed down criminal prosecutions, Newsday reported.

Gottehrer said this is another example of police defying the repeal of 50A, a New York State law that protected police misconduct records from being public. Now those records can be requested through Freedom of Information requests.

“When the Police Department doesn’t think that they need to be accountable or transparent with the public, it undermines trust,” Gottehrer said, adding that it can be dangerous for the government, which includes police agencies, to operate as such.

Efforts to solicit comment from the Nassau County Police Department were unavailing, but Commissioner Patrick Ryder told Newsday they maintain a working relationship with the DA’s office.

What is driving this dispute is a 2020 NYS criminal law called discovery reform.

Discovery reform outlines a strict timeline of when evidence must be disclosed and expands the types of evidence that the defense can use – including law enforcement documents.

In misdemeanor cases, discovery items must be turned over within 90 days. This is extended to six months for felonies.

Under this law, law enforcement agencies are defined as an extension of the prosecution, in this case the district attorney’s office, and files possessed by law enforcement are considered in possession of the prosecution.

This plays in tandem with the Brady decision, which determines prosecutors must turn over any evidence that could be used by the defense, and the Giglio decision which makes records that pertain to discrediting police witnesses automatically discoverable – or provided to the defense regardless of being asked for or not.

But what if law enforcement agencies don’t share those records with prosecutors, as evident in court proceedings throughout Nassau County?

Delays in the prosecution providing law enforcement documents to the defense are not considered valid and it is the responsibility of the prosecutors to ensure a regular “flow of information.”

If this is not maintained and law enforcement documents are not provided to the prosecutors and defense, then a remedy or sanction can be ordered by the court – including for a case to be dismissed entirely.

The dispute is playing out in the case against Amandeep Singh, a 35-year-old Roslyn man who was allegedly driving on the wrong side of the road at 95 mph with a blood alcohol count of 0.15 four hours after his arrest with cocaine in his system.

His truck struck an Alpha Romeo occupied by four teenagers, all Roslyn High School boys varsity tennis players, resulting in the death of young tennis stars Drew Hassenbein, 14, and Ethan Falkowitz, 14.

Singh was charged with multiple offenses, including aggravated vehicular homicide, assault, driving while intoxicated, driving while impaired by the combined influence of alcohol and a drug, reckless driving and a felony count of leaving the scene of an incident without reporting, authorities said.

He denied a plea to the top count of aggravated vehicular homicide within his 15-count indictment, which carries a sentence of 8-1/3 years to 25 years in prison.

On March 22, presiding Judge Helene Gugerty denied the police’s attempt to rescind the subpoena for their records on the case. She ordered the files to be supplied the following Monday.

Singh’s defense said these records may help their case.

PBA attorney Brian Mitchell said during a March 14 hearing for a grand larceny and drunken driving case that the police do not have confidence in the district attorney’s ability to protect these records from defense attorneys and their clients, Newsday reported.

But the district attorney’s office said this impacts the prosecution of cases.

“The NCPD’s refusal to provide all underlying disciplinary records essentially gambles with valid prosecutions,” Assistant District Attorney Brianna Ryan wrote, as reported by Newsday.

Police unions have argued that releasing these documents could violate the officers’ privacy, jeopardizing their ability to enforce the law and their lives, Newsday reported. But, there is no evidence that these scenarios have played out.

​​But with the repeal of a law that kept police disciplinary records private, or 50A, the police’s argument to protect these records is weakened.

In 2020, 372 allegations were reported against Nassau County law enforcement with just 12 determined to be founded. Five reports regarded unprofessional conduct, three for improper tactics, one for neglect of duty and three for other undefined allegations.

Data from 2020 is the latest available information for complaints filed against the Nassau County Police Department.

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