2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title J - Prosecution of Indictments in Superior Courts--Plea to Sentence › Article 245 - Discovery › 245.70 - Protective Orders.

§ 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
law.