People v Nottage

[*1] People v Nottage 2006 NY Slip Op 50175(U) [11 Misc 3d 1052(A)] Decided on February 9, 2006 Criminal Court Of The City Of New York, Kings County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Reginald Nottage



2005KN062983

Eileen N. Nadelson, J.

Motion for a Protective Order

Defendant is charged with the Criminal Possession of a Weapon in the Fourth Degree. Pursuant to section 200.95(7) of the CPL, the People have moved for a protective order permitting the People to withhold portions of the affidavit and court minutes submitted in support of the application for the search warrant of the premises in which the alleged weapon was found.

The information sought to be redacted from the minutes and affidavit are:

The name of the confidential informant

The gender of the confidential informant

The days of the months in which the confidential informant made the observations

(The month and year are not being redacted)

The number of times the confidential informant visited the premises in question

The substance of the conversations the confidential informer had with the Defendant that

are not part of the charge

Whether the confidential informant will be paid for coning forward

The length of time the confidential informant has known the Defendant

The nickname by which the confidential informant called the Defendant

The People argue that a protective order is necessary because of a substantial rick of physical harm to the confidential informant should this information be disclosed to the Defendant prior to trial.

Section 240.50(1) of the CPL states that

The court in which the criminal action is pending may, upon motion of either

party...issue a protective order denying, limiting, conditioning, delaying or

regulating discovery...for good cause, including...a substantial rick of physical

harm,...including the protection of the confidentiality of informants....

Search warrant applications are not exempted from discovery on the ground that disclosure would tend to reveal the identity of confidential informants, but reasonable protective measures may be ordered by the court in order to assure the physical safety of the informer. People v. Velez, 147 Misc 2d 865, 556 N.Y.S.2d 818 (New York County 1990). To avoid potential harm to the informant, it is often important to maintain the secrecy of the informant's identity, especially at the early stages of a criminal proceeding. Therefore, trial courts have the discretion to prohibit a defendant from eliciting the informant's name or any other information that could reveal the informant's identity [emphasis added] People v. Edwards, 95 NY2d 486, 719 N.Y.S.2d 202 (2000).

The determining factor for the court in deciding whether or not to grant a protective order is whether the information sought to be withheld is of the type and nature that would have the effect of making the identity of the confidential informer known to the Defendant. The information should only be disclosed if the identity of the informant or the contents of the informant's communication would be essential to a fair determination of the case. People v. Malinsky, 15 NY2d 86, 262 N.Y.S.2d 65 (1965).

The right to protect the identity of confidential informers, referred to as the "informer's privilege," has been deemed to further the public interest in effective law enforcement by encouraging citizens to communicate their knowledge of criminal activities to law-enforcement officials by guaranteeing them anonymity. This privilege should generally be applied, and should only be excepted when the disclosure would be essential to the defense or to a fair adjudication. See, People v. White, 16 NY2d 270, 266 N.Y.S.2d 100 (1965).

The information sought to be redacted from the minutes and warrant application in the instant case is of the nature that, if disclosed, could reveal the identity of the confidential informer. Further, none of the matter sought to be redacted concerns the nature or elements of the crime with which the Defendant is charged. The court firmly believes that every reasonable precaution should be taken to assure that anonymity of the informer is protected to the maximum degree possible. People v. Darden, 34 NY2d 177, 336 N.Y.S.2d 582 (1974). Therefore, the court grants the People's motion for a protective order to redact the portions of the warrant application and minutes cited above.

This constitutes the decision and order of the court.

Dated: February 9. 2006 _____________________________

Eileen N. Nadelson, J.C.C.