Opinion
2021-04222 Ind. 388/2021
06-16-2021
The People, etc., plaintiff, v. Alexander Easterling, defendant.
M277729 E/sl
DECISION & ORDER ON APPLICATION
ROBERT J. MILLER, ASSOCIATE JUSTICE
Application by the People pursuant to CPL 245.70(6) to vacate or modify a ruling of an Acting Justice of the Supreme Court, Nassau County, as set forth in an order of that court dated June 9, 2021, which modified an order of the same Court dated May 12, 2021.
Upon the papers filed in support of the application and the papers filed in opposition thereto, and upon oral argument, it is
ORDERED that the application pursuant to CPL 245.70(6) is granted, the order dated June 9, 2021, is vacated, and the provisions of the order dated May 12, 2021, that were modified by the order dated June 9, 2021, are reinstated; and it is further, ORDERED that the documents submitted under seal by the People in connection with this 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 other 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 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 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 the concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in modifying the prior protective order.