County Court, Orange County, August 10, 2021

David M. Hoovler, District Attorney, Goshen (Christopher P. Borek of counsel), for plaintiff.

Matthew D. Witherow, Port Jervis, for defendant.

Gary Somerville, Goshen, former attorney for defendant.

The People move, pursuant to CPL 245.70 and 245.10 (1) (a) (iv) (A), for a protective order declaring certain records made by stenographers in the grand jury non-discoverable.

Upon the oral arguments of defense counsel Gary Somerville, Esq., defense counsel Matthew D. Witherow, Esq., and Chief Assistant District Attorney Christopher P. Borek, it is hereby ordered that the People's application for a protective order is granted.

In the instant matter the stenographer who transcribed the grand jury proceedings utilized a stenographic machine which automatically created a digital audio recording of the proceedings. The stenographic machine employed by the court reporter had proprietary software known as "Case CATalyst." The machine defaulted to create a digital audio recording of the proceeding and utilized a feature identified as "AudioSync." AudioSync synchronized the recorded audio with the transcripts created by the stenographer. The digital audio recording created by the stenographic machine is utilized as an aid by the stenographer in creating an accurate and official transcript. While the People assert that these recordings are not discoverable to defendants under CPL article 245, they have applied for a protective order in an abundance of caution in order to notify the defendant of the presence of the recordings and to have the court rule on the same.

CPL 245.20 (1) (b) states that the People shall disclose to the defendant "[a]ll transcripts of the testimony of a person who has testified before a grand jury." The People are obligated to provide the transcripts of the witness testimony before the grand jury; however, the preliminary notes or shorthand utilized by the grand jury stenographer to create the transcript generally are not discoverable. Such materials are mere aids{**73 Misc 3d at 250} utilized by the stenographer in producing the transcript. The language of the statute is clear and unambiguous; it requires the People to turn over the transcript of the testimony.^[FN*] While the defendant acknowledges that this subdivision specifically addresses grand jury transcripts and aids utilized by a court reporter in generating the transcript, the defendant asserts that the stenographic machine's digital audio recording is discoverable pursuant to CPL 245.20 (1) (e), as it is a recording of a witness. Said provision requires that the People provide "[all] statements, written or recorded or summarized in any writing or recording, made by persons who have evidence or information relevant to any offense charged or to any potential defense thereto." Essentially, CPL 245.20 (1) (e) codifies the Rosario law which existed prior to the discovery reforms, which accelerated and expanded the breadth of discoverable material and the timing of the same. Prior to this codification, the aids utilized by a court reporter in drafting the final, official transcript did not fall under the auspices of Rosario material.

This court is of the opinion that the general nature of CPL 245.20 (1) (e) does not supersede the specific provision of CPL 245.20 (1) (b) regarding grand jury proceedings. CPL 245.20 (1) (b) provides that the transcripts of grand jury witness testimony are discoverable, not the preliminary notes, or shorthand used in the preparation of the transcript. The digital audio [*2]recording is akin to preliminary notes or shorthand, as it is utilized as a tool by the court reporter to produce an accurate and complete transcript of the testimony. The absence of any reference to or requirement that any preliminary notes, shorthand, or digital recordings be disclosed is evidence of the fact that their exclusion from disclosure was intended. The language of CPL 245.20 (1) (b) is clear and unambiguous. Accordingly, the People's motion must be granted as they are not required to provide the digital audio recording created by the stenographic machine (see e.g. People v Finnegan, 85 NY2d 53 [1995]; Matter of Brusco v Braun, 84 NY2d 674 [1994]; Matter of Board of Mgrs. of Park Place Condominium v Town of Ramapo, 247 AD2d 537 [2d Dept 1998]).