Appellate Division: Second Judicial Department

M276805

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ANGELA G. IANNACCI, J.

2021-02709 The People, etc., plaintiff, D v Ahziem Walter, defendant. (Ind No. 4825/2019)

ECISION & ORDER ON APPLICATION

Application by the People pursuant to CPL 245.70(6), in effect, to vacate or modify stated portions of a ruling of an Acting Justice of the Supreme Court, Kings County, as set forth in a protective order of that court dated April 12, 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 People pursuant to CPL 245.70(6) is granted and the ruling and protective order are modified by (1) deleting the provisions denying those branches of the People's application for a protective order which were to delay disclosure to defense counsel of the name and relationship to the complainant of Witness #1, and adequate contact information for Witness #1, and the names and adequate contact information for Witnesses #2-4, and substituting therefor a provision granting those branches of the People's application for a protective order which were to delay disclosure of these items to defense counsel, and disclosure of those items is delayed until 15 days prior to the commencement of the trial; (2) deleting the provision denying that branch of the People's application for a protective order which was to delay disclosure of material that would reveal that an interview was conducted of a certain witness and the witness's age, and substituting therefor a provision granting that branch of the People's application for a protective order which was to delay disclosure of that item, and disclosure of that item is delayed until 15 days prior to the commencement of the trial; (3) deleting the provision denying that branch of the People's application for a protective order which was to delay disclosure of the "names and adequate contact information" for any person who provided surveillance footage to the police, and substituting therefor a provision granting that branch of the application for a protective order which was to delay disclosure of those items, and disclosure of those items is delayed until 15 days prior to the commencement of the trial; (4) deleting the provision denying that branch of the People's application for a protective order which was to delay disclosure of a certain audio portion of the recording by Police Officer Husband's body-worn camera, and substituting therefore a provision granting that branch of the People's application for a protective order which was to delay disclosure of that item, and disclosure of that item is delayed until 15 days prior to the commencement of the trial; and (5) deleting the provision denying that branch of the People's application for a protective order which was to delay disclosure of the substance of an interview with the complainant's mother, and substituting therefore a provision granting that branch of the People's application for a protective order which was to delay disclosure of that item, and disclosure of that item is delayed until 15 days prior to the commencement of the trial; 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 AD3d 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's determination to grant the People's request for a protective order only to the extent indicated was an improvident exercise of discretion. Under the particular facts and circumstances presented, I grant the People's application pursuant to CPL 245.70(6) to modify the protective order accordingly.

ANGELA G. IANNACCI

Associate Justice