| People v Zayas |
| 2020 NY Slip Op 05236 |
| Decided on September 30, 2020 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 30, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
v
Armando Zayas, defendant. (Ind. No. 2020-027)
DECISION & ORDER
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 September 17, 2020, which, inter alia, directed that all discovery be disclosed no later than 15 days prior to the scheduled pre-trial hearing in this matter.
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 to vacate or modify the order dated September 17, 2020, is granted to the extent that the order dated September 17, 2020, is modified by directing that (1) disclosure of the audio and video recordings of the narcotics sales shall be made to defense counsel only, to be viewed at the prosecutor's office, with such disclosure to be made forthwith, and (2) disclosure of the names, addresses and contact information of the confidential informant and undercover personnel shall be delayed until the commencement of the trial, and the application to vacate or modify the order dated September 17, 2020, 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 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 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 [*2]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 the concerns for witness safety and protection, I conclude that the County Court improvidently exercised its discretion in denying the People's request in its entirety. Under the particular facts and circumstances of this case, including that the pre-trial hearing is scheduled to commence on October 2, 2020, the County Court should have directed disclosure of the audio and video recordings of the narcotics sales be made available forthwith to defense counsel only, to be viewed at the prosecutor's office. Additionally, the County Court should have delayed disclosure of the names, addresses, and contact information of the confidential informant and undercover personnel until the commencement of the trial.
JOSEPH J. MALTESE
Associate Justice