Search OpenLegislation Statutes

This entry was published on 2020-05-08
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 245.70
Protective orders
Criminal Procedure (CPL) CHAPTER 11-A, PART 2, TITLE J, ARTICLE 245
§ 245.70 Protective orders.

1. Any discovery subject to protective order. Upon a showing of good
cause by either party, the court may at any time order that discovery or
inspection of any kind of material or information under this article be
denied, restricted, conditioned or deferred, or make such other order as
is appropriate, including, for 911 calls, allowing the disclosure of a
transcript of an audio recording in lieu of the recording. The court may
impose as a condition on discovery to a defendant that the material or
information to be discovered be available only to counsel for the
defendant; or, alternatively, that counsel for the defendant, and
persons employed by the attorney or appointed by the court to assist in
the preparation of a defendant's case, may not disclose physical copies
of the discoverable documents to a defendant or to anyone else, provided
that the prosecution affords the defendant access to inspect redacted
copies of the discoverable documents at a supervised location that
provides regular and reasonable hours for such access, such as a
prosecutor's office, police station, facility of detention, or court.
Should the court impose as a condition that some material or information
be available only to counsel for the defendant, the court shall inform
the defendant on the record that his or her attorney is not permitted by
law to disclose such material or information to the defendant. The court
may permit a party seeking or opposing a protective order under this
section, or another affected person, to submit papers or testify on the
record ex parte or in camera. Any such papers and a transcript of such
testimony may be sealed and shall constitute a part of the record on
appeal. This section does not alter the allocation of the burden of
proof with regard to matters at issue, including privilege.

2. Modification of time periods for discovery. Upon motion of a party
in an individual case, the court may alter the time periods for
discovery imposed by this article upon a showing of good cause.

3. Prompt hearing. Upon request for a protective order, unless the
defendant voluntarily consents to the people's request for a protective
order, the court shall conduct an appropriate hearing within three
business days to determine whether good cause has been shown and when
practicable shall render a decision expeditiously. Any materials
submitted and a transcript of the proceeding may be sealed and shall
constitute a part of the record on appeal. When the defendant is charged
with a violent felony offense as defined in section 70.02 of the penal
law, or any class A felony other than those defined in article two
hundred twenty of the penal law, the court may, at the prosecutor's
request, for good cause shown, conduct such hearing in camera and
outside the presence of the defendant, provided however that this shall
not affect the rights of the court to receive testimony or papers
ex-parte or in camera as provided in subdivision one of this section.

4. Showing of good cause. In determining good cause under this section
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 as
defined in subdivision three of section 460.10 of the penal law; and
other similar factors found to outweigh the usefulness of the discovery.

5. Successor counsel or pro se defendant. In cases in which the
attorney-client relationship is terminated prior to trial for any
reason, any material or information disclosed subject to a condition
that it be available only to counsel for the defendant, or limited in
dissemination by protective order or otherwise, shall be provided only
to successor counsel for the defendant under the same condition or
conditions or be returned to the prosecution, unless the court rules
otherwise for good cause shown or the prosecutor gives written consent.
Any work product derived from such material or information shall not be
provided to the defendant, unless the court rules otherwise or the
prosecutor gives written consent. If the defendant is acting as his or
her own attorney, the court may regulate the time, place and manner of
access to any discoverable material or information; and it may as
appropriate appoint persons to assist the defendant in the investigation
or preparation of the case. Upon motion or application of a defendant
acting as his or her own attorney, the court may at any time modify or
vacate any condition or restriction relating to access to discoverable
material or information, for good cause shown.

6. Expedited review of adverse ruling. (a) A party that has
unsuccessfully sought, or unsuccessfully opposed the granting of, a
protective order under this section relating to the name, address,
contact information or statements of a person may obtain expedited
review of that ruling by an individual justice of the intermediate
appellate court to which an appeal from a judgment of conviction in the
case would be taken.

(b) Such review shall be sought within two business days of the
adverse or partially adverse ruling, by order to show cause filed with
the intermediate appellate court. The order to show cause shall in
addition be timely served on the lower court and on the opposing party,
and shall be accompanied by a sworn affirmation stating in good faith
(i) that the ruling affects substantial interests, and (ii) that
diligent efforts to reach an accommodation of the underlying discovery
dispute with opposing counsel failed or that no accommodation was
feasible; except that service on the opposing party, and a statement
regarding efforts to reach an accommodation, are unnecessary where the
opposing party was not made aware of the application for a protective
order and good cause is shown for omitting service of the order to show
cause on the opposing party. The lower court's order subject to review
shall be stayed until the appellate justice renders a determination.

(c) The assignment of the individual appellate justice, and the mode
of and procedure for the review, shall be determined by rules of the
individual appellate courts. The appellate justice may consider any
relevant and reliable information bearing on the issue, and may dispense
with written briefs other than supporting and opposing materials
previously submitted to the lower court. The appellate justice may
dispense with the issuance of a written opinion in rendering his or her
decision, and when practicable shall render decision and order
expeditiously. Such review, decision and order shall not affect the
right of a defendant, in a subsequent appeal from a judgment of
conviction, to claim as error the ruling reviewed.

7. Compliance with protective order. Any protective order issued under
this article is a mandate of the court for purposes of the offense of
criminal contempt in subdivision three of section 215.50 of the penal