New York Criminal Defense & Protective Orders


In People v. Harvey, 2020 N.Y. Slip Op 20022 (Sup. Ct. 2020), the People requested a Protective Order under New York Criminal Procedure Law Article 245. New York Criminal Defendants and New York Criminal Defense Attorneys should know that the new Article 245 of the Criminal Procedure Law allows prosecutors to limit discovery, sometimes to attorney's eyes only, and will allow prosecutors to certify readiness on their cases while not producing the evidence to the defendants as required by law. While we are just starting to see the exceptions in the case, People v. Harvey highlights the prosecutor's burden in seeking a protective order.


This case involved some horrific facts: Defendant is charged by Indictment 1148/2018 with Assault in the Second Degree, Criminal Obstruction of Breathing, Criminal Contempt in the First Degree, and related charges. It is alleged that on or about May 18, 2018, the defendant — acting in violation of a prior Order of Protection — punched the pregnant and asthmatic victim Janae Shaw, struck her with a broomstick, strangled her, suffocated her with a pillow, tied her up with an extension cord, and whipped her with a second extension cord.... the People allege that after defendant was indicted in this matter he contacted the victim Ms. Shaw many times via Instagram, all in violation of an order of protection.


The People further allege that at one point in July of 2018 defendant took the couple's young daughter and threatened Ms. Shaw in an Instagram message that she would not see her daughter again until she dropped all charges against him.


In People v. Harvey, the Court analyzed "the People's application for a Protective Order; the Grand Jury minutes; defendant's NYSIID sheet; the Indictment; and all papers filed and proceedings had in connection with defendant's prior application to controvert the Search Warrant that was issued in this case." The legislature intended and the Court made clear that "It is the People's burden to show "good cause" for a Protective Order limiting discovery." That standard is set forth in the newly-enacted CPL § 245.70 (effective January 1, 2020), and it is essentially the same standard as that set forth in the predecessor statute (former CPL § 240.50). Under the New Law, however, a Criminal Defendant it entitled to written materials, witness statements, and other discovery that would otherwise not be provided sometimes until the day of trial by the prosecutor.


By changing the law, making the prosecutor provide the evidence before the trial, the New York Criminal Defense Attorney and New York Criminal Defendant can better prepare their case and, should the prosecutor not comply, the New York Criminal Defense Attorney can move to Dismiss on Speedy Trial Grounds. This means that grand jury minutes, Rosario discovery and written statements must routinely be produced to the accused, the New York Criminal Defendant. New York Criminal Defense has now moved into the twenty-first century, removing the blindfold off the accused.


Long before 2020, "[t]he availability of a legal arsenal of protections is significant since the right of a defendant to discover a potentially material witness must be balanced against a founded fear that such discovery might lead to intimidation of the witness or the influencing of his testimony." People v Andre W., 44 NY2d 179, 186, (1978) (citing People v Goggins, 34 NY2d 163 [1974]). Grand Jury testimony used to be completely secret, to preserve the sensitive nature of those proceedings. Here, the Court notes that "limiting discovery of Grand Jury testimony strictly to counsel for trial preparation purposes is consistent with the Court's duty to "preserve inviolate" the secrecy of Grand Jury proceedings." See CPL § 190.25(4) and Penal Law § 215.70; see also People v Sayavong, 83 NY2d 702 (1994); People v DiNapoli, 27 NY2d 229 (1970); People v Guile, 25 NY Crim R 456 (Steuben Co Court, 1911).


Under the New Law, the Court is required to engage in a balancing test when issuing a protective order, thus withholding records from the defense: "Among the factors listed in CPL § 245.70(4) that have relevance here are: (1) the safety of witnesses; (2) the risk of harassment, bribery, or intimidation of witnesses; (3) the defendant's history of witness tampering or intimidation; (4) the nature of the factual allegations in the case; and (5) any other factors that might outweigh the usefulness of discovery."


Prohibiting the Defendant, who here is accused of threatening to kill the witness in this case, from seeing the Grand Jury Minutes is an equal balance. Praising the attorney for previous good work, the Court in People v. Harvey , notes that "defendant has not demonstrated — and cannot demonstrate — that there will be any further useful purpose served by providing defendant with his own copy of the Grand Jury minutes, to keep and to use as defendant may see fit."


The Court holds that "the People's application for a Protective Order is hereby granted [and the] Court will advise the defendant in person on the record of the limitations hereby imposed on defense counsel at the next adjourned date in this case."


Accused of a crime? Appellate Work? Protective Order? Speedy Trial?


Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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