People v. Clarke

186 A.D.3d 1707

129 N.Y.S.3d 862 (Mem)

The PEOPLE, etc., plaintiff,

v.Andre CLARKE, defendant.

2020–07222

Ind. No. 706/2020

Supreme Court, Appellate Division, Second Department, New York.

September 30, 2020

DECISION & ORDER ON APPLICATION

COLLEEN D. DUFFY, Associate Justice Application by the defendant pursuant to CPL 245.70(6) to vacate or modify an order of a Justice of the Supreme Court, Kings County, dated September 21, 2020.

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

ORDERED that the application to vacate or modify the order dated September 21, 2020, is granted to the extent that the order is modified by deleting the provision thereof directing that the subject recordings shall only be exhibited to the defendant, attorneys employed by Brooklyn Defender Services, and any person approved by the Supreme Court as necessary and for the exclusive purpose of preparing a defense in the case, and substituting therefor a provision directing that the subject recordings shall only be exhibited to the defendant, attorneys employed by Brooklyn Defender Services, and those employed by counsel or appointed to assist in the defense, 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...