Opinion
Motion No: 2021-00153 SCR
04-15-2021
The People of the State of New York, Plaintiff, v. Ronald M. Carter, Defendant.
DECISION & ORDER ON APPLICATION
Application by the defendant pursuant to CPL 245.70 (6), to vacate or to modify a ruling of a Judge of the First District Court, Suffolk County, as set forth in a protective order of that court dated April 2, 2021.
Upon the papers filed in support of the application and the papers filed in opposition thereto, it is
ORDERED that the application by the defendant pursuant to CPL 245.70 (6) is granted, and the protective order issued on April 2, 2021, by the First District Court, Suffolk County, is hereby vacated; and it is further
ORDERED that the People are granted leave to renew their application for a protective order before the District Court with more specific allegations as to the nature of potentially embarrassing material contained in the records sought.
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 judge 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 AD3d 871, 874 [2020, Scheinkman, P.J.]).
Applying these standards to the matter at hand, upon the limited record before the court, I conclude that the District Court's determination to deny the defendant's request to the extent indicated was an improvident exercise of discretion. In support of its application for a protective order, the People provided no specifics whatsoever as to the nature of potentially embarrassing material contained in the records they sought to protect.
Defendant's application by the defendant pursuant to CPL 245.70 (6) is granted, and the protective order issued on April 2, 2021, by the First District Court, Suffolk County, is hereby vacated. The People are granted leave to renew their application for a protective order before the District Court with more specific allegations as to the nature of potentially embarrassing material contained in the records sought.
ENTER,
JERRY GARGUILO
Associate Justice
Appellate Term, 9th & 10th Judicial Districts