N.Y. CPL Law § 245.70 — New York Code / Act CPL / Part 2 / Title J / Article 245 / Section 245.70
Protective orders
Status: in_force

§ 245.70 Protective orders.\n  1. Any discovery subject to protective order. Upon a showing of good\ncause by either party, the court may at any time order that discovery or\ninspection of any kind of material or information under this article be\ndenied, restricted, conditioned or deferred, or make such other order as\nis appropriate, including, for 911 calls, allowing the disclosure of a\ntranscript of an audio recording in lieu of the recording. The court may\nimpose as a condition on discovery to a defendant that the material or\ninformation to be discovered be available only to counsel for the\ndefendant; or, alternatively, that counsel for the defendant, and\npersons employed by the attorney or appointed by the court to assist in\nthe preparation of a defendant's case, may not disclose physical copies\nof the discoverable documents to a defendant or to anyone else, provided\nthat the prosecution affords the defendant access to inspect redacted\ncopies of the discoverable documents at a supervised location that\nprovides regular and reasonable hours for such access, such as a\nprosecutor's office, police station, facility of detention, or court.\nShould the court impose as a condition that some material or information\nbe available only to counsel for the defendant, the court shall inform\nthe defendant on the record that his or her attorney is not permitted by\nlaw to disclose such material or information to the defendant. The court\nmay permit a party seeking or opposing a protective order under this\nsection, or another affected person, to submit papers or testify on the\nrecord ex parte or in camera. Any such papers and a transcript of such\ntestimony may be sealed and shall constitute a part of the record on\nappeal. This section does not alter the allocation of the burden of\nproof with regard to matters at issue, including privilege.\n  2. Modification of time periods for discovery. Upon motion of a party\nin an individual case, the court may alter the time periods for\ndiscovery imposed by this article upon a showing of good cause.\n  3. Prompt hearing. Upon request for a protective order, unless the\ndefendant voluntarily consents to the people's request for a protective\norder, the court shall conduct an appropriate hearing within three\nbusiness days to determine whether good cause has been shown and when\npracticable shall render a decision expeditiously. Any materials\nsubmitted and a transcript of the proceeding may be sealed and shall\nconstitute a part of the record on appeal. When the defendant is charged\nwith a violent felony offense as defined in section 70.02 of the penal\nlaw, or any class A felony other than those defined in article two\nhundred twenty of the penal law, the court may, at the prosecutor's\nrequest, for good cause shown, conduct such hearing in camera and\noutside the presence of the defendant, provided however that this shall\nnot affect the rights of the court to receive testimony or papers\nex-parte or in camera as provided in subdivision one of this section.\n  4. Showing of good cause. In determining good cause under this section\nthe court may consider: constitutional rights or limitations; danger to\nthe integrity of physical evidence or the safety of a witness; risk of\nintimidation, economic reprisal, bribery, harassment or unjustified\nannoyance or embarrassment to any person, and the nature, severity and\nlikelihood of that risk; a risk of an adverse effect upon the legitimate\nneeds of law enforcement, including the protection of the\nconfidentiality of informants, and the nature, severity and likelihood\nof that risk; the nature and circumstances of the factual allegations in\nthe case; whether the defendant has a history of witness intimidation or\ntampering and the nature of that history; the nature of the stated\nreasons in support of a protective order; the nature of the witness\nidentifying information that is sought to be addressed by a protective\norder, including the option of employing adequate alternative contact\ninformation; danger to any person stemming from factors such as a\ndefendant's substantiated affiliation with a criminal enterprise as\ndefined in subdivision three of section 460.10 of the penal law; and\nother similar factors found to outweigh the usefulness of the discovery.\n  5. Successor counsel or pro se defendant. In cases in which the\nattorney-client relationship is terminated prior to trial for any\nreason, any material or information disclosed subject to a condition\nthat it be available only to counsel for the defendant, or limited in\ndissemination by protective order or otherwise, shall be provided only\nto successor counsel for the defendant under the same condition or\nconditions or be returned to the prosecution, unless the court rules\notherwise for good cause shown or the prosecutor gives written consent.\nAny work product derived from such material or information shall not be\nprovided to the defendant, unless the court rules otherwise or the\nprosecutor gives written consent. If the defendant is acting as his or\nher own attorney, the court may regulate the time, place and manner of\naccess to any discoverable material or information; and it may as\nappropriate appoint persons to assist the defendant in the investigation\nor preparation of the case. Upon motion or application of a defendant\nacting as his or her own attorney, the court may at any time modify or\nvacate any condition or restriction relating to access to discoverable\nmaterial or information, for good cause shown.\n  6. Expedited review of adverse ruling. (a) A party that has\nunsuccessfully sought, or unsuccessfully opposed the granting of, a\nprotective order under this section relating to the name, address,\ncontact information or statements of a person may obtain expedited\nreview of that ruling by an individual justice of the intermediate\nappellate court to which an appeal from a judgment of conviction in the\ncase would be taken.\n  (b) Such review shall be sought within two business days of the\nadverse or partially adverse ruling, by order to show cause filed with\nthe intermediate appellate court. The order to show cause shall in\naddition be timely served on the lower court and on the opposing party,\nand shall be accompanied by a sworn affirmation stating in good faith\n(i) that the ruling affects substantial interests, and (ii) that\ndiligent efforts to reach an accommodation of the underlying discovery\ndispute with opposing counsel failed or that no accommodation was\nfeasible; except that service on the opposing party, and a statement\nregarding efforts to reach an accommodation, are unnecessary where the\nopposing party was not made aware of the application for a protective\norder and good cause is shown for omitting service of the order to show\ncause on the opposing party. The lower court's order subject to review\nshall be stayed until the appellate justice renders a determination.\n  (c) The assignment of the individual appellate justice, and the mode\nof and procedure for the review, shall be determined by rules of the\nindividual appellate courts. The appellate justice may consider any\nrelevant and reliable information bearing on the issue, and may dispense\nwith written briefs other than supporting and opposing materials\npreviously submitted to the lower court. The appellate justice may\ndispense with the issuance of a written opinion in rendering his or her\ndecision, and when practicable shall render decision and order\nexpeditiously. Such review, decision and order shall not affect the\nright of a defendant, in a subsequent appeal from a judgment of\nconviction, to claim as error the ruling reviewed.\n  7. Compliance with protective order. Any protective order issued under\nthis article is a mandate of the court for purposes of the offense of\ncriminal contempt in subdivision three of section 215.50 of the penal\nlaw.\n  8. A motion filed in good faith pursuant to subdivision one or two of\nthis section shall be deemed a pre-trial motion for the purposes of\nparagraph (a) of subdivision four of section 30.30 of this chapter.\n