Appellate Division: Second Judicial Department

M283003

KS/mb

DEBORAH A. DOWLING, J.

2022-03120 The People, etc., plaintiff,D v Warren Howard, defendant. (Ind. No. 70441/2021)

ECISION & ORDER ON APPLICATION

On the Court's own motion, it is

ORDERED that the decision and order on application of this Court dated May 5, 2022, in the above-entitled case is recalled and vacated, and the following decision and order on application is substituted therefor:

Application by the People pursuant to CPL 245.70(6) to vacate or modify a protective order of an Acting Justice of the Supreme Court, Kings County, dated April 26, 2022.

Upon the papers filed in support of the application and the papers filed in opposition thereto, and upon oral argument, it is

ORDERED that the application by the People pursuant to CPL 245.70(6) is granted to the extent that the order dated April 26, 2022, is modified by deleting the provisions thereof directing that the People shall immediately disclose the information listed in paragraph 5 of their application and shall forthwith disclose the active and verified cell phone number and email address for each witness to defense counsel, and substituting therefor provisions directing that the People shall delay disclosure to defense counsel, until 15 days prior to the commencement of the trial of the indictment, of the information listed in paragraph 5 of their application and the active and verified cell phone number and email address for each witness; defense counsel may not disclose the subject materials or information to anyone other than an investigator appointed to assist in the defense; and the application is otherwise denied; 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 other 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 [Scheinkman, PJ]).

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 order dated April 26, 2022, to the extent indicated.

DEBORAH A. DOWLING

Associate Justice