DECISION GRANTING PROTECTIVE ORDER PURSUANT TO CPL §245.70 The People have applied for a Protective Order pursuant to the newly-enacted CPL §245.70. That statute provides that, upon a showing of good cause, the court may order that discovery be denied, restricted, conditioned, or deferred; or that the court may make any other order regarding discovery as is appropriate. Specifically, the People seek a Protective Order granting two forms of relief, namely: 1) that the Grand Jury minutes be provided for trial preparation purposes to defense counsel, who may review them with defendant, but that defendant will not be permitted to obtain his own copy of the minutes; and 2) that contact information for the People’s witnesses be provided solely to defendant’s counsel, and not shared with defendant. Defendant Randy Harvey consents to the latter request, and it is hereby granted. The Court must now resolve the People’s application to limit disclosure of the Grand Jury minutes to the defendant personally. A hearing was held on the People’s application before this Court on January 28, 2020.1 For the reasons detailed below, the People’s application will be granted. I. PROCEDURAL BACKGROUND Defendant is charged by Indictment 1148/2018 with Assault in the Second Degree, Criminal Obstruction of Breathing, Criminal Contempt in the First Degree, and related charges. It is alleged that on or about May 18, 2018, the defendant — acting in violation of a prior Order of Protection — punched the pregnant and asthmatic victim Janae Shaw, struck her with a broomstick, strangled her, suffocated her with a pillow, tied her up with an extension cord, and whipped her with a second extension cord. The record further indicates that, while in a jealous rage, defendant essentially tortured the victim Ms. Shaw in this fashion over a period of more than twelve hours; and defendant simultaneously broadcast part of his assault on Ms. Shaw live via Facebook for his friends to see. Defendant Harvey has prior felony convictions for Assault and for Criminal Possession of a Loaded Firearm, as well as a Youthful Offender adjudication for sale of narcotics. As detailed in this Court’s prior decision in this case, dated November 12, 2019, the People allege that after defendant was indicted in this matter he contacted the victim Ms. Shaw many times via Instagram, all in violation of an order of protection. The People further allege that at one point in July of 2018 defendant took the couple’s young daughter and threatened Ms. Shaw in an Instagram message that she would not see her daughter again until she dropped all charges against him. In one Instagram message defendant wrote: Our daughter needs both parents. So until you realize that you won’t see or hear from her. Once my cases are dismissed you can have her back. Simple. It’s nothing else to talk about. I’ll give her back as soon as my lawyer says it’s dropped. That’s my final offer. Don’t HMU [hit me up] until it’s done. Write and get it notarized and given to my lawyer. Subsequently, sometime in the fall of 2018, the complainant did in fact refuse to cooperate further with the District Attorney’s Office. II. ANALYSIS Effect of Earlier, Broader Discovery It is the People’s burden to show “good cause” for a Protective Order limiting discovery. That standard is set forth in the newly-enacted CPL §245.70 (effective January 1, 2020), and it is essentially the same standard as that set forth in the predecessor statute (former CPL §240.50). There is an important difference, however. The Legislature has also recently significantly revised the entire scheme of discovery in a criminal case, so that a criminal defendant is now entitled to automatic and much broader discovery at a much earlier stage in the course of a criminal proceeding. In particular, under the new CPL §§245.10 and 245.20, a defendant is entitled to Rosario material — including Grand Jury testimony — for all prosecution witnesses within fifteen days of arraignment.2 In the past, such material was generally not required to be disclosed until the trial jury was sworn. See former CPL §240.45; see also People v. Bonifacio, __ AD3d __, 2020 Slip Op 00517 (2d Dept, January 20, 2020) (“Unlike the prior discovery statute, which allowed the People to wait until the time of trial to turn over witness statements, the new statutory scheme provides that disclosure is to be made within days after arraignment”) (citations omitted). Thus, under the new discovery law, defendant is entitled to much earlier discovery of witness statements. That is significant in the context of an application for a Protective Order because — all other things being equal — any potential for misuse or abuse of these sensitive discovery materials is greater where the defendant possesses those materials for a much longer period of time. The Statutory Test Like its predecessor statute CPL §240.50, the newly-enacted CPL §245.70(4) calls upon the Court to engage in a balancing test. The new statute first enumerates certain risk factors that might militate against discovery in a particular case, and then directs the Court to consider whether these factors “outweigh the usefulness of discovery.” Among the factors listed in CPL §245.70(4) that have relevance here are: (1) the safety of witnesses; (2) the risk of harassment, bribery, or intimidation of witnesses; (3) the defendant’s history of witness tampering or intimidation; (4) the nature of the factual allegations in the case; and (5) any other factors that might outweigh the usefulness of discovery. Risks Presented There can be no question that defendant Harvey presents a real and present danger of violent witness intimidation. He has an extensive record, including two violent felony offenses. In this case, the Grand Jury has found probable cause to believe that defendant committed sadistic and life-threatening violence against the then-pregnant victim, Ms. Shaw — strangling her, suffocating her, binding her with an extension cord, and beating her with both his hands and a broomstick, all in violation of a prior Order of Protection. Moreover, once charged in this case, defendant entered into an extensive course of witness tampering — contacting Ms. Shaw many times via Instagram in violation of this Court’s Order of Protection, and threatening her with the loss of all contact with her child unless she dropped the charges against him. Thus there can hardly be a case where the risk that defendant will engage in witness intimidation is more obvious than it is here. Defendant clearly has no regard for Orders of Protection, nor for the law in general. He cannot be trusted to keep Grand Jury materials confidential, or to refrain from using these materials in any way — whether legal or not — that he thinks might help him. Indeed, given the testimony that defendant “live broadcasted” a portion of his sadistic assault upon the victim to his friends, it is readily conceivable that defendant might disseminate copies of Grand Jury materials simply in order to further express his rage. Usefulness of Discovery It is clear that defense counsel needs to review prior witness statements in order to properly prepare for trial. That is the reason for the Rosario rule, now embodied within CPL §245.20. In addition, it may be that defense counsel will find it useful to review the Grand Jury minutes with defendant as part of counsel’s trial preparation, because defendant may have unique factual background to provide to his counsel. Accordingly, the People have properly conceded in their application that defense counsel should be provided with the Grand Jury minutes, and that counsel should be permitted to review those minutes with defendant (as often as counsel finds useful). However, defendant has not demonstrated — and cannot demonstrate — that there will be any further useful purpose served by providing defendant with his own copy of the Grand Jury minutes, to keep and to use as defendant may see fit. To the contrary, defense counsel is an excellent lawyer who works with excellent trained investigators, all of whom fully are capable of analyzing Grand Jury testimony without defendant’s assistance, and all of whom have a professional duty to use the Grand Jury minutes solely for legitimate purposes and in a legal manner.3 Authority of the Court This Court plainly possesses the authority to grant the relief requested by the People. CPL §245.70(1) itself expressly contemplates that such relief may be granted in an appropriate case. It provides, in pertinent part: 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…. (Emphasis added.) Courts have frequently limited discovery in this way, and in other case-sensitive ways, recognizing that “[t]he availability of a legal arsenal of protections is significant since the right of a defendant to discover a potentially material witness must be balanced against a founded fear that such discovery might lead to intimidation of the witness or the influencing of his testimony.” People v. Andre W., 44 NY2d 179, 186, (1978) (citing People v. Goggins, 34 NY2d 163 [1974]). Moreover, limiting discovery of Grand Jury testimony strictly to counsel for trial preparation purposes is consistent with the Court’s duty to “preserve inviolate” the secrecy of Grand Jury proceedings. See CPL §190.25(4) and Penal Law §215.70; see also People v. Sayavong, 83 NY2d 702 (1994); People v. DiNapoli, 27 NY2d 229 (1970); People v. Guile, 25 NY Crim R 456 (Steuben Co Court, 1911). For these reasons, courts have properly limited dissemination of Gand Jury testimony and witness statements to defense counsel in appropriate cases. See, e.g., People v. Fielder, 160 AD3d 1116, 1121 (3d Dept 2018); People v. McCallum, 159 AD3d 1013 (2d Dept 2018); and People v. Santana, 100 AD3d 479 (1st Dept 2012). III. CONCLUSION In sum, there is, on the one hand, every reason to think that defendant may use Grand Jury materials to further intimidate witnesses in this case, and that defendant will have no regard for any court order directing him to limit his use of the Grand Jury materials to appropriate purposes. On the other hand, there would appear to be no useful legitimate purpose to be served by providing defendant with his own personal copy of the Grand Jury testimony. The People have met their burden of showing good cause to limit discovery in the fashion they have requested. Accordingly, the People’s application for a Protective Order is hereby granted. A separate Order will be filed herewith, and (as required by CPL §240.75[1]) the Court will advise the defendant in person on the record of the limitations hereby imposed on defense counsel at the next adjourned date in this case. This Memorandum constitutes the Decision of the Court. Dated: January 30, 2020
