Supreme Court, New York County, February 9, 2022

Eugene Nathanson for defendant.

Alvin Bragg, District Attorney (Kathryn Suma of counsel), for plaintiff.

This case presents a matter of apparent first impression. Does CPL 245.20 (1) (d) permit the People to withhold video evidence that would disclose the identity of an undercover police officer without need for a protective order? The court agrees with the People that it does.

Defendant moves for an order requiring the People to turn over two videos that were taken by an undercover officer and that depict the defendant allegedly selling narcotics to that officer. Defendant argues that absent a protective order, the People can only withhold the name and work affiliation of an undercover officer, and therefore that these videos must be turned over. The People argue that turning over the videos would reveal the identity of the undercover officer, just as disclosing his name would, thereby jeopardizing both the safety of the officer and other investigations in which the officer is, or might come to be, involved.

The court finds that the People have satisfied their disclosure obligation by making the videos available for defense counsel to view privately—which counsel confirms he has done—and are not required to turn over the videos themselves.

Pursuant to Criminal Procedure Law § 245.20 (1) (d), the People can withhold or redact "[i]nformation . . . relating to undercover personnel . . . without need for a" protective order. It is true that, broadly speaking, the purpose of section 245.20 is to ensure that defendants receive timely and complete discovery. But that purpose must yield to certain competing concerns, one of which is the need to protect the safety of undercover law enforcement officers and the integrity of their investigations. Those concerns are embedded in section 245.20 (1) (d), and this court is of the view that a broad interpretation of this section is necessary to further those ends, and thus that limiting the information covered by this section to an officer's name and work affiliation is not adequate to do so.

The court notes that, with respect to protective orders, CPL 245.70 (4) gives the trial court the discretion to order that protected materials be made available only to counsel, and not to be shared with the defendant, upon a showing of "good cause." Section 245.20 (1) (d) simply allows the prosecution to{**74 Misc 3d at 947} make the "good cause" decision in cases where the information at issue relates [*2]to the safety of undercover law enforcement officers, and/or the integrity of their work. The legislature has expressly determined that the prosecution should make the "good cause" determination, not a judge, and the court can see no reason to interfere with this legislative choice. Here, the ADA agreed to allow counsel to review the videos in the Office of the Special Narcotics Prosecutor, even though under section 245.20 (1) (d), she could legally have "withheld" the material entirely. This situation is no different than those where a court enters a protective order limiting disclosure to defense counsel alone.

Defendant argues that, in other cases, the Office of the Special Narcotics Prosecutor has turned over redacted copies of videos similar to those at issue here. But that is immaterial, since as noted above, the People are entitled to withhold information relating to undercover officers entirely, if they deem it necessary to do so. Here, the People have offered to provide defense counsel with still photographs from the videos, with redactions to protect the identity of the undercover officer. Such disclosure will fully satisfy the People's obligations under CPL article 245.

Finally, the court finds that defense counsel has greatly overstated the degree of prejudice resulting from the limited disclosure of these videos. Counsel can view the videos as often as he needs to become familiar with their contents. He can take notes on them and review those notes, along with the yet-to-be-provided still images, with his client. Although this process is perhaps more inconvenient than simply viewing the videos along with his client, it will certainly be sufficient to allow counsel and the defendant to prepare a defense.

Defendant's motion for disclosure of the two videos and their accompanying audio is denied. If the defendant requests stills from the videos, the People are ordered to provide them, redacted as necessary, within 15 days of that request.