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On Jan. 1 of this year, New York's new criminal discovery laws became effective. The new law, which was then amended in April, intended wholesale changes to the discovery practice, apparently reflecting legislative agreement with People v. Copicotto, 50 N.Y.2d 222, 226 (1980) that "broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence." Sponsor's Memo to Senate Bill S1716 of 1919. Memorandum in Support of A1431 of 1919.

Entirely replacing the former CPL article 240, the new CPL article 245 provides that significant, enumerated disclosures be made to the defense within specified time periods. Under the former regime discovery was generally delayed leaving defendants and their counsel largely in the dark until the eve of trial. Discovery under the new law is automatic and its timing is generally gauged from arraignment. Generally, substantial material must be provided within 15 to 45 days of a felony defendant's arraignment on the indictment. CPL §245.10(1)(a). What the disclosures must include is set forth in CPL §245.20(1)(a) through (u). In addition, the new law makes the prosecutor responsible for any information held by "any New York state or local police or law enforcement agency." CPL §245.20(2). While certain redactions are permitted, "[t]here shall be a presumption in favor of disclosure." CPL §245.20(7).

Sensitive Contact Information

Unsurprisingly, a sensitive change is the early disclosure of names and contact information of non-law enforcement witnesses, along with their prior statements and grand jury testimony (also known as Rosario material). CPL §245.20(1)(b), (c), and (e). Previously, this discovery routinely was withheld until the eve of trial. Under the new statute, witness contact information, prior testimony, and recorded statements have the same disclosure schedule as other discovery materials—generally (as modified early in April) within 20 or 35 days of arraignment, depending on whether the defendant is in custody. See CPL §§245.10(a)(i) and (ii). The April 2020 amendments also permit delayed disclosure of witnesses who called 911, victims or witnesses to sex crimes or sex trafficking crimes, "or any other victim or witness of a crime where the defendant has substantiated affiliation with a criminal enterprise." See CPL §245.10(a)(iv)(a); CPL §245.20(g).

Particularly in crimes of violence, prosecutors and victims' rights advocates fear witness intimidation from early disclosure of this critical information. And sometimes, in some cases, such fears are well-founded. But the defense needs this information to investigate and evaluate the government's case. In addition to requiring earlier disclosure, the new law also broadens tremendously the scope of required disclosures. Most significantly, the prosecution is required to turn over not just discovery relating to witnesses it intends to call at trial, but also must disclose "all persons other than law enforcement whom the prosecutor knows to have information relevant to the offense charged or to any potential defense thereto." CPL §245.20(1)(c).

One effort to minimize intimidation concerns but satisfying the statutory obligation to provide "adequate contact information" has been government-created contact portals through which defense counsel can seek a witness's cooperation without the witness's address or personal information being disclosed. In People v. Todd, 2020 NY Misc. LEXIS 1153, WL 1174269 (Sup. Ct., Queens Co. March 12, 2020), a Verizon portal that allowed "counsel to contact witnesses by telephone without requiring disclosure of the witnesses' personal phone numbers" was found sufficient. However, an earlier Brooklyn case found "inadequate" a similar method using a smartphone application called Witcom. People v. Feng, NYLJ, Feb. 28, 2020, at 21, col. 1, 2020 NYLJ LEXIS 501, at *5 (Sup. Ct., Kings Co. 2020).

Disclosure Exceptions

The new law attempts to accommodate witness safety concerns through judicial protective orders. "Upon a showing of good cause" the "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." CPL §245.70(1). And the new law helpfully lists some criteria the judge may consider for determining "good cause." CPL §245.70(4).

Further, the trial judge may frame such an order, for example, so that only the defense counsel may review disclosed material, or the court may limit the defendant's personal access to redacted versions of documents. Such an order may be sought ex parte or in camera. Violating a protective order is criminal contempt under Penal Law §215.50(3). If a protective order is obtained ex parte, there must be a "good cause" hearing within three business days. CPL §245.70(4). The statute, though, is silent as to what must be shown at a "good cause" hearing.

Expedited Review

Significantly, also new is the creation of a "second bite at the apple" to the party adversely affected by a protective order application. The law provides that the party adversely affected by the trial judge's protective order decision may obtain expedited review of the order by an order to show cause before the intermediate appellate court within two business days of the adverse ruling. CPL §245.70(6). CPL §245.70(6)(b) sets forth what the application should contain and who is to be served with the application. The appellate court assigns the application to a single appellate justice for determination. The reviewing justice may consider "any relevant and reliable information bearing on the [disputed] issue." CPL §245.70(6)(c). Thus, the law explicitly provides that the appellate justice is not bound by the record before the trial level judge. The trial judge's ruling is stayed until the appellate justice rules. CPL §245.70(6)(c).

Varying Review Standards

Although the reviewing appellate judge is not obliged to issue a written decision, CPL §245.70(6)(c) several opinions have issued on the expedited review of protective orders. A key issue is what standard of review should be applied to the trial judge's ruling. Two paths have emerged in the written opinions. In People v. Artis, Justice Elizabeth A. Garry of the Third Department, observing the statutory scheme gave her authority to consider facts not presented to the trial level judge (see CPL §245.70(6)(c)), concluded her authority was fully de novo. People v. Artis, 179 A.D.3d 1440 (3rd Dept. 2020) ("The fact that the statute contemplates that the Appellate Division Justice may consider materials not before the trial court compels the conclusion that a de novo standard of review is to be employed."). Under that approach the appellate justice gives no deference to the balancing of interests performed by the trial level judge.

Justices in the Second Department have looked at their expedited review role differently. Justice Alan D. Scheinkman has concluded that questions of law would receive de novo review. People v. Beaton, 179 A.D.3d 871 (2d Dept. Jan. 17, 2020) ("This Justice accepts the proposition that where a pure question of law is concerned, the reviewing justice decides the question de novo."). If there is no error of law, Scheinkman concluded that the trial judge's treatment of the facts and balancing of the factors, as well as his or her decision regarding what protection, if any, to order, would be reviewed only to determine whether the trial court's determination was a "provident exercise of discretion." Id. Applying this approach in another case, Scheinkman noted while he might have acted differently than the trial level judge, he found that the trial judge's decision was not an abuse of discretion. People v. Nash, 179 A.D.3d 982 (2d Dept. Jan. 27, 2020).

The "provident exercise of discretion" standard seems to have become the de facto standard followed by other reviewing appellate justices in the Second Department. People v. Brown, 181 A.D.3d 958 (2d Dept. March 25, 2020) (Duffy, J.) ("the standard for this Court's review of the protective order [. . .] is whether the determination made by the trial court was a provident exercise of discretion"). People v. Reyes, 180 A.D.3d 967 (2d Dept. Feb. 21, 2020) (Leventhal, J.) (modifying a protective order on prosecution's application because "[u]nder the particular facts and circumstances presented, concerns for witness safety and protection far outweigh the usefulness of the discovery."); People v. Manon, 180 A.D.3d 734 (2d Dept. Feb. 6, 2020) (Dillon, J.) (modifying a protective order on prosecution's application delaying "defense counsel's access to all information or material relating to […] three witnesses […] until the jury is sworn."); People v. Brown, 180 A.D.3d 1107 (2d Dept. Feb. 28, 2020) (Cohen, J.) (modifying protective order directing immediate disclosure as an abuse of discretion and deciding that such disclosure can be delayed until 45 days prior to trial).

Applying this approach, Justice Scheinkman has, upon finding an error of law, sent the matter back to the trial judge to reconsider. See People v. Bonifacio, 179 A.D.3d 977 (2d Dept. Jan. 23, 2020); People v. Belfon, 179 A.D.3d 981 (2d Dept. Jan. 27, 2020). On the other hand, Justice Mark C. Dillon, in finding an error of law, simply decided the underlying issue himself. In People v. Manon, 180 A.D.3d 734 (2d Dept. Feb. 6, 2020), Justice Dillon found that the trial judge erred in selecting which factors to consider in issuing a protective order. Rather than remand to the trial judge, he addressed the protective order application de novo. To be sure, an appellate determination between what is an "error of law" and what is a failure in discretion may be difficult to discern.

Limiting Overbroad Orders

These protective order disclosure disputes primarily seek to delay disclosures until near the eve of trial, i.e., to resurrect the former discovery approach that the Legislature sought to replace. The applications are almost always ex parte submissions by the prosecution. And defense counsel is presented with the impossible task of rebutting the unknown. One strategic consideration for defense counsel is to use the mandated good cause hearing to their advantage. Counsel should request the issuing court to require the prosecution to place the facts allegedly supporting a protective order on the record. If so required by the trial judge, this affords defense counsel an opportunity to advocate for more limited protective orders both by contrasting the prosecution's proffered rationale against the statutory provisions of section 245.70(4) and by articulating such facts as may rebut the prosecution's position.

Given the new statute's overall presumption in favor of disclosure, and its express options of providing limited disclosure (e.g., to defense counsel only) these can be winning arguments before the trial judge or on expedited appellate review. In People v. Brown, 181 A.D.3d 958 (2d Dept. March 25, 2020), the reviewing justice observed that mere fear of an inadvertent disclosure by counsel to the defendant is not enough to reject the "defense counsel only" option in lieu of completely delaying disclosure. And, in People v. Beaton, 179 A.D.3d 871 (2d Dept. Jan. 17, 2020), the absence of any indication that the trial level judge had considered the option of limiting disclosure to defense counsel was treated as an "error of law." Forcing the prosecution to disclose its criteria is consistent with the spirit of the statute and may provide counsel a means to prevent overbroad protective orders.

Adam Kaufmann is a partner at Lewis Baach Kaufmann Middlemiss practicing in the areas of white-collar crime, asset tracing and recovery, investigations, complex commercial fraud, and judgment enforcement. Marc Frazier Scholl is counsel at the firm.