BEKAL Wins Decision Underscoring Independence of the Judiciary, Defendants' Access to Discovery


In a decision filed today, the Nassau County Supreme Court “denied in its entirety” the District Attorney and Police Commissioner’s Article 78 petition seeking to prohibit Nassau District Judge Andrew Engel from ruling that testifying police officers’ complete disciplinary records must be disclosed to the defense under New York’s newly enacted discovery statute.

In so holding, the court reasoned that Criminal Procedure Law Article 245 contains a “presumption in favor of disclosure,” and highlighted that the legislature used mandatory language in ordering disclosure under the new discovery law. The statute, the court concluded, when construed in accordance with its plain language and the legislative intent, supported Judge Engel’s decisions requiring these records to be disclosed, and also granted him authority to strike prosecutors’ certificates of compliance for failure to comply with their discovery obligations in this regard.

The court also noted that the prosecution never availed itself of various remedies available under the new statute, including seeking protective orders for particular items of discovery or appellate review of adverse decisions. Judge Engel’s attorney, Donna Aldea, of Barket Epstein Kearon Aldea and LoTurco, LLP, had argued in opposition papers that having failed to even attempt to use these available legal remedies, the District Attorney and Police Commissioner’s petition seeking the extraordinary remedy of a writ prohibiting Judge Engel from ruling against the prosecution in any future cases to come before him was vastly inappropriate, and amounted to an unauthorized prior restraint on the independence and authority of the judiciary.

In denying the District Attorney and Police Commissioner’s petition, the court also vacated all prior temporary restraining orders in place during the pendency of the litigation, and concluded that “Judge Engel has complied with the statutory obligations set forth in CPL 245.10 et seq.” and “as such, there is no basis for the Petitioners’ requested relief.”

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