Opinion
2021-69084 Motion 2021-00340 KCR
07-07-2021
The People of the State of New York, Plaintiff, v. Rigoberto Garcia, Defendant.
Unpublished Opinion
MOTION DECISION
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 Criminal Court of the City of New York, Kings County, as set forth in a protective order of that court dated June 24, 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 denied; and it is further
ORDERED that the defendant is granted leave to request a hearing before the Criminal Court; 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 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 A.D.3d 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 Criminal Court providently exercised its discretion in granting the protective order.
Defendant's application pursuant to CPL 245.70 (6) is denied. Defendant is granted leave to request a hearing before the Criminal Court, for consideration of disclosure limited to defense counsel. CPL 245.70 (1).