Opinion
2021-04465 Ind 970/2020
06-30-2021
The People, etc., plaintiff, v. Tymiek Branch, defendant. The People, etc., plaintiff, v. Kevin Hurst, defendant.
DECISION & ORDER ON APPLICATION
BETSY BARROS ASSOCIATE JUSTICE
Application by the defendant Kevin Hurst pursuant to CPL 245.70(6) to vacate or modify a ruling of an Acting Justice of the Supreme Court, Queens County, as set forth in a protective order of that court dated June 16, 2021.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
ORDERED that the application of the defendant Kevin Hurst pursuant to CPL 245.70(6) is granted to the extent that the protective order is modified by deleting the provision thereof directing that when disclosure occurs, the material and information shall be made available to defense counsel only and that defense counsel not disclose the material and information to the defendants or to anyone other than those employed by counsel or appointed to assist in the defense and be used by defense counsel solely for the purpose of preparing the defense in this criminal action, and substituting therefor a provision directing that when disclosure occurs, the material and information shall be made available to defense counsel, who may disclose the material to the defendant Kevin Hurst and those employed by counsel or appointed to assist in preparing the defense, and shall be used solely for the purpose of preparing the defense in this criminal action, and the application is otherwise denied; and it is further,
ORDERED that the documents submitted under seal by the People in connection with the application pursuant to CPL 245.70(6) are deemed to be filed under seal, and shall continue to be sealed.
CPL 245.70(1) provides that, upon a showing of good cause by either party, the court may order that disclosure and inspection be denied, restricted, conditioned, or deferred, or make such order as appropriate. In determining whether good cause for a protective order exists, the court may consider "constitutional rights or limitations; danger to the integrity of physical evidence or the safety of a witness; risk of intimidation, economic reprisal, bribery, harassment or unjustified annoyance or embarrassment to any person, and the nature, severity and likelihood of that risk; a risk of an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, and the nature, severity and likelihood of that risk; the nature and circumstances of the factual allegations in the case; whether the defendant has a history of witness intimidation or tampering and the nature of that history; the nature of the stated reasons in support of a protective order; the nature of the witness identifying information that is sought to be addressed by a protective order, including the option of employing adequate alternative contact information; danger to any person stemming from factors such as a defendant's substantiated affiliation with a criminal enterprise . . .; and other similar factors found to outweigh the usefulness of the discovery" (CPL 245.70[4]).
Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, "the issue involves balancing the defendant's interest in obtaining information for defense purposes against concerns for witness safety and protection, the question is appropriately framed as whether the determination made by the trial court was a provident exercise of discretion" (People v Beaton, 179 A.D.3d 871, 874).
Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court providently exercised its discretion in granting that branch of the People's application which was to delay disclosure of certain materials relating to two witnesses until prior to trial. However, the Supreme Court improvidently exercised its discretion in granting that branch of the People's application which was to provide that when disclosure occurs, it should be made available to defense counsel only. The defendant Kevin Hurst is entitled to receive discovery material, such as Rosario, Brady and Giglio material, to aid his counsel in the preparation of this matter for trial (see People v Griggs, 180 A.D.3d 853, 855).