| People v Clarke |
| 2020 NY Slip Op 05221 |
| 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
Andre Clarke, defendant. (Ind. No. 706/2020)
DECISION & ORDER
Application by the defendant pursuant to CPL 245.70(6) to vacate or modify an order of a Justice of the Supreme Court, Kings County, dated September 21, 2020.
Upon the papers filed in support of the application and the papers filed in relation thereto, it is
ORDERED that the application to vacate or modify the order dated September 21, 2020, is granted to the extent that the order is modified by deleting the provision thereof directing that the subject recordings shall only be exhibited to the defendant, attorneys employed by Brooklyn Defender Services, and any person approved by the Supreme Court as necessary and for the exclusive purpose of preparing a defense in the case, and substituting therefor a provision directing that the subject recordings shall only be exhibited to the defendant, attorneys employed by Brooklyn Defender Services, and those employed by counsel or appointed to assist in the defense, and 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 [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 improvidently exercised its discretion in requiring defense counsel to seek approval of the court before exhibiting the subject recordings to investigators or others employed by counsel. Under the particular circumstances of this case, the court should have permitted defense counsel to disclose the recordings to those employed by counsel or appointed to assist in the defense, without prior approval from the Supreme Court (see People v Taggart, ___ AD3d ___, 2020 NY Slip Op 05020 [Wooten, J.]).
_________________________
COLLEEN D. DUFFY
Associate Justice