Opinion
Motion No 2022-00482 CR
06-28-2022
The People of the State of New York, Plaintiff, v. Vincent Montanaro, Defendant.
Unpublished Opinion
MOTION DECISION
DECISION & ORDER ON APPLICATION
JERRY GARGUILO, P.J.
Application by the People pursuant to CPL 245.70 (6), to vacate or to modify a ruling of a Judge of the District Court of Nassau County, First District, as set forth in an order of that court dated June 8, 2022.
Upon the papers filed in support of the application, it is
ORDERED that the application by the People pursuant to CPL 245.70 (4) is denied.
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 District Court's determination to deny, in part, the People's request to the extent indicated was not an improvident exercise of discretion. The District Court restricted the disputed records to viewing by defense counsel only, and deferred the question of the admissibility of the material to be determined at a conference before trial.