Appellate Division: Second Judicial Department

M286266

E/afa

JANICE A. TAYLOR, J.

2022-09329 The People, etc., plaintiff, D v Anthony Mitchell, defendant. The People, etc., plaintiff, v Ahmad Williams, defendant. The People, etc., plaintiff, v Brian Thomas, defendant. (Ind. No. 143/2022)

ECISION & ORDER ON APPLICATION

Application by the People pursuant to CPL 245.70(6) to vacate or modify an order of a Judge of the County Court, Rockland County, dated November 16, 2022, and to seal the papers filed in connection with the application.

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

ORDERED that the branch of the application which is pursuant to CPL 245.70(6) to vacate or modify the order dated November 16, 2022, is granted to the extent that the order dated November 16, 2022, is modified by adding a provision thereto directing that defense counsel may not disclose material provided by the People containing the name, address, contact information, or statements concerning "Witness-1" to anyone other than those employed by defense counsel or appointed to assist in the defense, until 30 days before the scheduled commencement of the trial of this indictment, at which time defense counsel may disclose the subject material to the their respective clients, and that branch of the application is otherwise denied and dismissed; and it is further,

ORDERED that the branch of the application which is to seal the papers filed in connection with the application is granted to the extent that the documents submitted by the People in connection with the application pursuant to CPL 245.70(6) may not be disclosed by defense counsel to anyone other than those employed by defense counsel or appointed to assist in the defense, until 30 days before the scheduled commencement of the trial of this indictment, at which time defense counsel may disclose the foregoing material to the their respective clients, if so advised, and that branch of the application is otherwise denied.

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).

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the County Court's determination to deny in its entirety the People's application for a protective order 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 November 16, 2022, to the extent indicated. The contentions concerning the portion of the order dated November 16, 2022, not relating to the name, address, contact information, or statements of a person have not been considered, and the application is dismissed to the extent that it seeks review of that portion of the order (see CPL 245.70[6]).

JANICE A TAYLOR

Associate Justice