Supreme Court, Erie County, November 14, 2022

Paul Dell and Nick Texido for defendants.

John J. Flynn, District Attorney (John Gerken of counsel), for plaintiff.

The defendants were charged with criminal possession of a controlled substance in the first degree pursuant to Penal Law § 220.21 (1) by way of felony complaint (and potentially other charges currently unknown to this court).

Defendant Franklin Richards has filed an order to show cause dated November 1, 2022, requesting this court order the People to disclose certain information prior to the expiration of a pre-indictment plea offer; specifically, the in camera search warrant application testimony of a confidential informant. Further, the defendant requests this court grant an order directing the People to file an unsealing motion for said information. Finally, the defendant requests the court order the People to extend the plea offer deadline a "reasonable period of time." The People have opposed this motion, filing a written response on November 5, 2022. The defendant filed a reply on November 9, 2022. The matter came before the court on November 10, 2022, for oral argument. Based on the submissions of the parties and oral arguments, the court makes the following findings.

The primary issue before this court is whether the People must provide to the defendant the in camera testimony of a confidential informant which was used in support of obtaining the search warrant which was executed in this case. The search warrant and search warrant application were provided with the discovery material turned over to the defendant. The [*2]defendant argues that under Criminal Procedure Law § 245.20 (1) (n), he is entitled to the in camera testimony. Under CPL 245.20 (1) (n) the People must disclose,

"Whether a search warrant has been executed and all documents relating thereto, including but not limited to the warrant, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application."

Whether or not the in camera testimony is discoverable, and if it's in the control of the People, are the questions this court must address. CPL 245.20 (1) requires that{**77 Misc 3d at 618}

"[t]he prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to . . . ."

Paragraph (n), as outlined above, references the search warrant related material. "In addition to expanding the types of material and information that must be disclosed by the prosecution and establishing an expeditious discovery schedule, article 245 contains an express 'presumption of openness,' favoring disclosure when interpreting the discovery provisions." (People v Soto, 72 Misc 3d 1153, 1155 [2021].) Soto goes on to state, "the prosecutor's obligations to provide discovery under the current statutes are so broad as to virtually constitute open file discovery." (Id. [internal quotation marks omitted].) The limitation imposed is that the information or evidence must be in the "control" of the People. CPL 245.20 (2) states,

"[t]he prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain."

The discovery legislation enacted in 2020 under CPL article 245 essentially assumes all material under law enforcement control is deemed in possession of the People for the purposes of providing the defendant discovery. While this is what the statute presumes, and material is deemed in the People's control, much of it is not in actuality in the possession of the People. A prime example the courts have seen since the enactment of CPL article 245 are police disciplinary records in which there has been a varying degree of compliance agency to agency. Despite this, the People are held to the burden of producing this material in order to be in compliance with their discovery obligations and in order to declare and maintain trial readiness.

"Pursuant to CPL 245.20 (2), the People must make a diligent, good faith effort to ascertain the existence{**77 Misc 3d at 619} of those items and cause them to be made available for discovery, even if the material is not within their possession, custody or control. In addition, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the People's possession." (Soto at 1155-1156.)

The procedure to obtain a search warrant via a confidential informant and the paper work associated with the application are well established and fairly standard. The warrant and application are prepared by and presented to the court by the law enforcement agency applying for the warrant. In situations where the probable cause for the issuance of the warrant is based upon a confidential informant, that individual is brought before the court, in camera, to provide sworn testimony which is stenographically (or otherwise) recorded. The court either grants or [*3]denies the warrant application and signed copies of the warrant are provided to law enforcement. The testimony of the confidential informant is not provided to law enforcement or the People and is generally sealed by the court. When the defendant challenges the sufficiency of the warrant the testimony of the confidential informant is sent from court to court. From the creation of the in camera minutes throughout the pendency of the case, this information is in the care, custody and control of the court.

The defendant has argued, in addition to being entitled to the in camera testimony under that statute, that it is needed to know and understand what the proof is and to further make a determination whether to accept a reduced plea. This argument fails, however, as the in camera testimony used to secure a warrant would not be proof at trial. The evidence at trial would be the results of the execution of the warrant and any contraband discovered in the subsequent search. The defendant would merely have the ability to challenge the sufficiency of the search warrant through pretrial motions. Further, the in camera testimony and the warrant have already been subject to judicial review by the issuing magistrate.

Ultimately, this court finds there is no conceivable theory in which the in camera testimony of an informant on a search warrant, whether a stenographic transcript or handwritten notes of the judge, is in the control of the People. CPL 245.20 (1) is clear in requiring everything that is "in the possession, {**77 Misc 3d at 620}custody or control of the prosecution or persons under the prosecution's direction or control" must be disclosed. The People provided the defendant with a copy of the warrant, application and associated documents (which also puts the defense on notice of the existence of a confidential informant). The transcript of the in camera testimony is never provided to the People upon the granting of the search warrant. It is a court document that is ultimately filed with the clerk. At the conclusion of the testimony, the court regularly seals the in camera testimony. "In this State there appears to be an unqualified right to inspect court records of the clerk of the court, subject only to the inherent power the court possesses with respect to its own records to seal them as the interests of justice may dictate." (People v Christopher, 109 Misc 2d 767, 768 [1981] [citation omitted].) Further, "The identity of the anonymous source of information sometimes contained in them has caused the courts to balance access to such information by the defendant, against the privacy that furthers and protects the public interest in effective law enforcement." (Christopher at 772.) See also Matter of Hynes v Karassik (47 NY2d 659, 664 [1979]),

 "Though the statute, therefore, embodies stringent safeguards by which court records may remain confidential, in appropriate cases courts have called upon a power, traditionally labeled inherent, to provide similar relief when the interests of justice so dictate. The power grows out of that measure of discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice," as it pertains to the court's ability to seal records including in camera testimony during a search warrant application.

The defendant has not presented any argument on how this information is under the control of the People. The in camera testimony of the confidential informant also appears to be equally available (or unavailable) to both parties. Disclosure would require a motion to unseal to the judge who issued the warrant and upon a showing of good cause. The decision would be left in the discretion of the issuing magistrate. As outlined in the statute, the People are not required to file a subpoena for information which the defendant may also obtain via subpoena. Under [*4]these circumstances, both the People and the defendant have the ability to file a motion to unseal the in camera testimony of the confidential informant. If there was a{**77 Misc 3d at 621} situation where the People were to come into possession of the in camera testimony, then the People would have the information in their actual possession and be required to provide this information to the defendant (dependant on an application for a protective order as outlined in the statute).

Additionally, as a practical matter, if the court were to order the disclosure of the in camera testimony that is the basis of a search warrant, there would be a chilling effect on the ability of law enforcement to recruit informants, solve crimes and protect the public. The entire reason an in camera procedure exists is to protect the identity of the informant and ultimately ensure their safety. If law enforcement is unable to guarantee anonymity and safety, there would be no way to secure the cooperation of confidential informants. Despite the language used in the statute, the legislative intent of CPL 245.20 (1) (n) cannot possibly be the elimination of in camera testimony that serves as the basis of search warrants, which is exactly what disclosing this information would accomplish. The nondisclosure of the confidential informant and the procedures that allow for judicial review are well established. "Defendant was not afforded the opportunity to see the supporting documents or to participate in the hearing because the court found that disclosure of the informant's identity and/or statements could compromise the safety of the informant or the integrity of future investigations." (People v Castillo, 80 NY2d 578, 580 [1992].) There already exists a mechanism for judicial review of in camera testimony that is the basis of a search warrant. Upon a defendant's request, that testimony is transferred from court to court. The People are not involved and do not receive a copy. The sealing of in camera testimony in New York is long standing. See People v Lee (205 AD2d 708, 709 [1994]), "We further note that the defendant was not entitled to disclosure of the informant's identity or to a redacted transcript of the informant's testimony before the issuing Magistrate to controvert the search warrant or challenge the legality of his arrest." The Court in Lee also refers to the "sealed minutes of the informant's testimony." (Id.) Also, People v Zuran (34 AD3d 857, 858 [2006]), "Moreover, it was also proper for the court to seal the affidavit supporting the search warrant in order to protect the anonymity of the confidential informants, and to protect them from danger."

Finally, the defendant has requested the court order the People to extend the expiration deadline of a pre-indictment plea offer. Based on the attachments in the parties' submissions,{**77 Misc 3d at 622} the defendant Franklin Richards was offered a one-step reduction to criminal possession of a controlled substance in the third degree pursuant to Penal Law § 220.16 (1) on a Farrar basis of a minimum sentence of 12 years plus five years postrelease supervision with the additional condition the defendant waive his right to appeal. As part of the plea offer, the People would not prosecute the codefendant, Toya Richards. On October 14, 2022, the People extended the aforementioned plea offer which had an expiration date of November 10, 2022.

Generally, it is not within the court's purview to dictate pre-indictment plea negotiations between the People and the defendant. Under the discovery reform legislation, there were certain requirements codified as to the duties of the People as it relates to preplea discovery. Specifically, under CPL 245.25 (1), entitled pre-indictment guilty pleas,

"Upon a felony complaint, where the prosecution has made a pre-indictment guilty plea offer requiring a plea to a crime, the prosecutor must disclose to the defense, and permit the defense to discover, inspect, copy, photograph and test, all items and information that [*5]would be discoverable prior to trial under subdivision one of section 245.20 of this article and are in the possession, custody or control of the prosecution. The prosecution shall disclose the discoverable items and information not less than three calendar days prior to the expiration date of any guilty plea offer by the prosecution or any deadline imposed by the court for acceptance of the guilty plea offer."

The statute further outlines potential sanctions for noncompliance. In the case currently pending before this court, the People filed their certificate of compliance and discovery on October 14, 2022, well prior to the expiration of the plea offer on November 10, 2022, and in compliance with the timeline set forth in CPL 245.25 (1). The obligations of the People are clearly outlined in the statute. The remedies for noncompliance are also clearly outlined in the statute. Based on the information before this court, that the People are in compliance with their preplea discovery obligations, there are no grounds for this court to order the People to extend any deadlines for their pre-indictment plea offer.

Therefore, the defendant's motion for the court to compel the disclosure of the in camera testimony is denied. The court finds that material/information is not under the People's control and{**77 Misc 3d at 623} further, the People met their due diligence and discovery obligations by not only providing the defendant with the warrant and application, but also disclosing the existence of the in camera testimony not under the People's control. This court further cannot compel the People to extend the deadline of any pre-indictment plea offer. The remedy prescribed by statute is applicable after the fact. Further, as long as the People meet their statutorily prescribed deadlines for preplea discovery, the court has no authority to intervene.