N.Y. Criminal Procedure Law § 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.

8. A motion filed in good faith pursuant to subdivision one or two of

this section shall be deemed a pre-trial motion for the purposes of

paragraph (a) of subdivision four of section 30.30 of this chapter.