People v Harrigan

People v Harrigan 2020 NY Slip Op 05612 Decided on October 8, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 8, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

[*1]The People of the State of New York, plaintiff,

v

Tajhion Harrigan, defendant. (Ind. No. 450/2020)

DECISION & ORDER

Application by the People pursuant to CPL 245.70(6) to vacate or modify an order of an Acting Justice of the Supreme Court, Kings County, dated September 29, 2020.

Upon the papers filed in support of the application and the papers filed in opposition thereto, it is

ORDERED that the application by the People pursuant to CPL 245.70(6) is granted to the extent that the order dated September 29, 2020, is modified by directing that the disclosure of the names of complainants 1, 2, and 3 shall be delayed until the commencement of the trial and shall be provided to defense counsel only, and that the disclosure of the names of the parents of complainants 1, 2, and 3 shall be delayed until 15 days prior to the commencement of the trial and shall be provided to defense counsel only, and the application is otherwise denied.

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 other order as appropriate. In determining whether good cause for a protective order exists, 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...; and other similar factors found to outweigh the usefulness of the discovery" (CPL 245.70[4]).

Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a protective order relating to the name, address, contact information, or statements of a person may obtain expedited review by an individual justice of the intermediate appellate court to which an appeal from a judgment of conviction would be taken. Where, as here, "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" (People v Beaton, 179 AD3d 871, 874 [Scheinkman, PJ]).

Applying the factors set forth in CPL 245.70(4), including concerns for witness safety and protection, I conclude that the Supreme Court improvidently exercised its discretion in directing immediate disclosure of the names of complainants 1, 2 and 3, and their parents to the defense, and in failing to limit disclosure of the names to defense counsel only. Under the particular circumstances of this case, the Supreme Court should have delayed disclosure of the subject information as set forth herein.

MARK C. DILLON

Associate Justice