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NY CPL 245 - Challenging the Protective Order

The Defendant in People v. Branton (Branton), 2020 NY Slip Op 00372 (Jan 17, 2020, 2nd Department) appealed the lower court's ruling pursuant to CPL § 245.70(6). 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 order as appropriate. Branton is a case where the Defendant was accused of rape, murder, kidnapping and assault. The lower court issued an order allowing the People to “withhold the names, addresses, and identifying information of certain witnesses.” The Defendant sought review under the new law.

Justice Alan D. Scheinkman, writing for the Second Department in Branton, determined that because 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” in determining the standard of review under these circumstances.

The legislature requires that, “[i]n determining whether good cause for a protective order exists, the court may consider” the factors set forth in CPL § 245.70(4). Among those factors are “the nature of the stated reasons in support of a protective order…and other similar factors found to outweigh the usefulness of the discovery.” As noted throughout the changes brought about by the legislature, the burden falls squarely upon the prosecutor in coming forward with reasons to prevent disclosure.

In Branton, Justice Alan D. Scheinkman noted that “the People's affirmation was unaccompanied by any affidavit from anyone with personal or direct knowledge of the relevant circumstances” and that “while alleging that a witness had been approached in person and by use of social media by ‘associates’ of the defendant, the People did not set forth the name of any such associate, the relationship between the defendant and any associate, the date or approximate date of the alleged improper approach, or even a general description of the incident.” There was no social medial information or records and the Court noted that “the sealed affirmation submitted to justify the issuance of the protective order is vague, speculative, and conclusory.” Ultimately, “the affirmation was legally insufficient to support the granting of the relief sought” although the prosecutor here will be allowed to make another application.

The instruction from the Second Department is clear that “[u]nder the new statute, the People, in seeking a protective order, and defense counsel, in opposing an application for a protective order, should provide a sufficiently detailed factual predicate to enable the courts to evaluate the applicability of the statutory factors governing the issuance of protective orders, assess the weight to be given to each factor, and draw an appropriate balance.” Additionally, the lower court is instructed to “examine[], as now expressly authorized, whether the information previously redacted could be appropriately disclosed only to defense counsel and the defense investigator”

Vacating the lower Court’s ruling, Presiding Justice Alan D. Scheinkman in People v. Branton noted that courts and practitioners alike will need to adapt to the new practices, “a process that will inevitably take both time and experience,” for which lower courts are reminded to evaluate alternatives, making a record in the process, and for which practitioners must become familiar with both the procedural and substantive requirements under the new law.

A criminal defense attorney who continues where others start: 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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