By Notice of Motion, the People, by ADA Carl Borelli, seek a protective order pursuant to CPL § 245.70 (1) and (2), deferring and modifying the time period for discovery. The People argue in their application that the time period for discovery should be deferred pursuant to CPL §245.70 due to "voluminous discoverable materials" (Borelli Aff. at ¶ 17)(emphasis added)^[FN1] . The People further argue that their pending CPLR Article 78 petition creates good cause for deferring discovery "until after the Article 78 proceeding concludes" (see Borelli Aff. at ¶ 21)^[FN2] . [*2]As a part of their proposed Order to Show Cause, the People did request a stay of all proceedings under this indictment, pending the determination of the Article 78, and this request was denied. Therefore, this Court's CPL § 245.35 (4) discovery order remains in effect as these proceedings are not stayed.

The defendant opposes the application. On June 26, 2025, during a telephone conference with the Court and the People, defense counsel offered to consent to a 30-day extension of time for the People to produce the discovery at issue, in accord with the People's request to defer discovery. In their reply with respect to this application ^[FN3] , the People have indicated that they are now in "actual" possession of the material for the six testifying officers, and will comply with this Court's June 20 Order by first providing the Court with unredacted copies of the IAB materials on or before July 25, 2025 (Borelli Reply at ¶ 6). The People further indicate that they are continuing to endeavor to review the material and redact in accordance with CPL Article 245, and that there are 13 unspecified audio / media files that they are unable to access and/or redact due to technology issues.

At the outset, as the Court indicated in its Answer to the Article 78 petition, had the People endeavored to communicate on June 20 with the Court and defense counsel about their efforts to produce redacted IAB underlying files to defense counsel, as contemplated by CPL Article 245, this Court would have entertained, and indeed granted, a protective order to delay discovery. The defendant acknowledges in his opposition that the People's request is reasonable, albeit untimely. Indeed, if the People had merely conferred with defense counsel at any time between June 12 and July 15 ^[FN4] , or even responded to Mr. Mayer's offers and phone call, significant time, expense, and vitriol could have been spared.

The Court will first consider the People's application to defer the disclosure of IAB [*3]underlying files due to their volume. Upon a showing of good cause by either party, a court may at any time order the discovery or inspection of any kind of material or information under Article 245 be denied, restricted, conditioned or deferred (CPL § 245.70 [1]). The court may impose as a condition that any material be available only to counsel for the defendant (see CPL § 245.70 [1]). This condition that the IAB material be disclosed for attorney's-eyes only has already been imposed by this Court's June 20 order, a condition which is the longstanding practice of this part. The defendant was notified of same by the Court.

In determining good cause pursuant to CPL § 245.70 (4), the Court may consider: constitutional rights or limitations; any danger to the integrity of physical evidence or the safety of a witness; any 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 adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentially of confidential 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 as defined in PL § 460.10; and any other similar factors that might outweigh the usefulness of the discovery.

The People's motion for a protective order does not argue that the "discoverable material" should not be disclosed for any of these enumerated considerations (see Borelli Aff. at ¶ 17) (emphasis added). Instead, the People argue that disclosing this volume of the material, "716 pages and 1,159 media files in total" for five testifying officers ^[FN5] , is an onerous task despite having a "Special Productions Unit" that was created for the purpose of managing impeachment material (see Borelli Reply at ¶ 8),^[FN6] and despite Article 245 automatically providing for extensions for voluminous discovery (see CPL 245.10 [1] [a], [2]). The People's belated claims that they are not in "actual" possession of "discoverable" law enforcement IAB materials is belied by the People's continued acknowledgement that the materials are in the possession of the Suffolk County Police Department and the unequivocal language of CPL § 245.20 (2).

Ninety-seven days have elapsed between when the People filed their first certificate of compliance, the contents of which would lead any reasonable reader to believe that the People fulfilled their discovery obligations pursuant to CPL § 245.20 (1) (k) (iv)^[FN7] . This Court's June 20 Order was issued pursuant to CPL § 245.35 (4), upon the defendant's request for underlying IAB material which had not yet been provided by the People. Thirty-five days have now elapsed since this Court's June 20 order directing disclosure, which as referenced above, remains in effect and the People have still not complied. Importantly, at least thirty-four days have elapsed since the People identified precisely how many pages and files of "discoverable material" exist with respect to the five testifying officers (see Borelli Aff. at ¶ 14, 17 [emphasis added]). The People detail in their motion how many pages (716) and how many files (1,159) are outstanding with respect to five officers, which shows that the material has been precisely identified and was within the actual possession of the SCPD, and in the People's constructive possession by statute (see CPL § 245.20 [2]).

It is patent that the discovery dispute here is, and was, resolvable without the need for applications to multiple courts for intervention. In their reply, the People aver that "the parties agree that the People have established good cause" to request a modification of the discovery times pursuant to CPL § 245.70 (2), and indicate that they finally reached out to defense counsel on July 15 (Borelli Reply at ¶ 3, 6). The People aver that they are in "actual possession of the underlying IAB files for the six testifying hearing witnesses, are currently reviewing the documents for redactions," and that they are prepared to turn over the unredacted material to the Court (Borelli Reply at ¶ 6). The People are reminded of Article 245's limitations placed permissible redactions without leave of the court.

Accordingly, the People's application to modify the time period for disclosure of the underlying IAB files is granted to the extent as follows: (1) as offered by ADA Borelli, the People are ordered to disclose to the Court all unredacted IAB materials for the law enforcement officers that they intend to call at the Huntley hearing as soon as possible; (2) the People are ordered to disclose to defense counsel, for attorney's-eyes only, the approximately 716 pages of underlying material relating to the testifying law enforcement officers within two weeks, or 14 calendar days, of the date of this Order, on or before August 8, 2025; (3) the People are permitted at this time to withhold the "1,159 media files" identified by ADA Borelli. The defense is granted leave to request specific media files if, after reviewing the documentary evidence, counsel has a good faith basis to make such request in connection with specific allegations of misconduct. If such a request is made, the Court will refer to the unredacted files, and review in camera to determine whether, and to what extent, any media files will be disclosed to defense counsel.

This ruling considers the fact that this case must move forward, as the defendant has been remanded in custody since his arrest. This case is now, partly as a result of this dispute, over six months old. This Court has never required, or even suggested, that Article 245 requires the [*4]People to turn over personnel files for any member of law enforcement, or to turn over IAB records and underlying materials for non-testifying officers (see People v Coley, 2025 NY Slip Op 1945 [2d Dept 2025])^[FN8] .

With respect to the branch of the People's motion to defer discovery during the pendency of the Article 78 proceeding currently pending before the Appellate Division Second Department (Index. 07333/2025), the Court has already deferred discovery for this reason, at the request of the People, defense counsel and the defendant, from June 25 to July 14. This branch of the application is denied, as the People fail to demonstrate that a pending Article 78, filed by the prosecution, is good cause as defined by CPL § 245.70 (4).

The People have already applied to the Appellate Division for, in effect, this same relief. The People sought a stay in these proceedings while the Article 78 petition is pending, were denied that stay, but are here now asking again for this criminal prosecution to be paused awaiting a determination from the Appellate Division. Therefore, the pending Article 78 cannot be good cause to delay discovery, and these criminal proceedings where the defendant is presumed innocent and presently incarcerated shall proceed forward ^[FN9] .

The defendant has been in custody since his arrest on January 5, 2025. While the People argue in support of their application that because this case was "less than six months old" at the time of the instant motion, that somehow a delay in proceedings wouldn't be unreasonable. The fact remains that it was this part's oldest case that was ready for trial after motion practice concluded on June 3. The People's petition for an Article 78 does not, on its own, result in a delay of these proceedings or the People's ability to be ready, and therefore cannot be a basis to delay automatic discovery, especially in light of this Court's granting of the aforementioned protective order (see generally People v Williams, 146 Misc 2d 866 [Sup. Ct. Bronx. Cty. 1990]).

Therefore, for these reasons, the People's application to delay discovery until the [*5]resolution of their petition currently pending before the Appellate Division, which could not and would not result in a termination of these proceedings, is denied.

The People and defendant are ordered going forward to diligently confer to attempt to reach accommodations concerning any other discovery disputes prior to seeking rulings from the Court, including, but not limited to, the IAB files and all underlying material for the law enforcement witnesses that the People intend to call for the trial in this matter (see CPL § 245.35 [1]). The amendments to Article 245 that will take effect on August 7, 2025 will require same.

Once the People comply with this protective order, the People are ordered, pursuant to CPL § 245.35 (3), to file a new certificate of compliance. The defendant is ordered to file his reciprocal certificate of compliance as required by CPL § 245.20 (4).

The hearing, previously scheduled for June 25, 2025, to determine which, if any, of the allegations of misconduct will be admissible during the Huntley hearing, will take place on August 14, 2025. Further, the previously scheduled Huntley hearing will commence soon thereafter, after consideration of the schedules of the Court and the parties.

The foregoing constitutes the decision and Order of this Court.