New York’s new statutory scheme for pretrial disclosure in criminal cases is intended to promote fairness in the criminal justice system by requiring prosecutors to turn over evidence to the defense soon after arraignment. However, the new statutory scheme also contains a provision permitting either party to seek a protective order to deny, restrict, condition, or defer the release of discoverable information and materials. As under prior law, the court is authorized to issue a protective order upon a showing of “good cause” (CPL 245.70[1]). For the reasons that follow, the court finds that the People made the required showing of good cause in this case, and therefore denies the defendant’s motion to unseal and vacate the protective order issued on January 15, 2020. The defendant Alfonzo Cole is charged by Indictment No. 1842-19 with murder in the second degree and criminal possession of a weapon in the third degree stemming from the May 19, 2019 stabbing of Desmond Tillery. The People allege that on the night of the homicide, the defendant observed the defendant inside of a deli in Far Rockaway, Queens, and began threatening to “fuck” him up and stab him. The defendant then approached the victim, took a knife from his pocket, and repeatedly stabbed him. After the victim collapsed inside of the deli, the defendant, who was standing outside, repeatedly yelled at him to “come out of the store.” The People further allege that immediately after the stabbing, while the defendant was still in front of the deli, the defendant’s brother Christopher Cole entered the deli and saw the victim slumped on the floor. Christopher Cole then left the deli and gave the defendant his bicycle so that the defendant could flee. With the assistance of his brother and a friend, the defendant left New York and traveled to the home of an uncle who resided in Pennsylvania. Meanwhile, on the day after the homicide, both Witness #1 and Witness #2, whose identities have not been disclosed, separately identified the defendant from photo arrays. The defendant was arrested in Pennsylvania on June 5, 2019, waived extradition, and was returned to New York. On January 13, 2020, shortly after the new statutory scheme governing pretrial disclosure in criminal cases took effect, the People submitted an ex parte application for a protective order permitting them to delay disclosure, until commencement of trial, of any identifying information relating to Witness #1 and Witness #2, including statements, reports, grand jury, and audio or video recordings. On January 15, 2020, Assistant District Attorney Courtenay Finnerty appeared before the court ex parte, was sworn in, and averred, inter alia, to the truthfulness of the factual statements set forth in support of the People’s application. The court thereupon granted the requested protective order, and directed sealing of the application, supporting affirmation, protective order, and the minutes of the ex parte proceeding. On the following day, January 16, 2020, the People filed a Certificate of Compliance certifying that all existing and known material and information subject to discovery had been provided to defense counsel, “except for any items or information that are the subject of a protective order under section 245.70 of the Criminal Procedure Law.” The prosecutor, Ms. Finnerty, also verbally notified defense counsel, Kenneth Deane, of the issuance of the protective order. When the matter appeared on the calendar on January 17, 2020, defense argued that under the new statutory framework, the court was required to conduct a plenary hearing prior to the issuance of a protective order. Counsel also asked for an opportunity to be heard regarding the protective order, and consideration of less restrictive alternatives, such as the provision of the subject information to counsel and the defense investigator. The court asked counsel to submit papers on the issue. By order to show cause dated January 22, 2020, the defendant thereafter moved to unseal and vacate the protective order. In a supporting affirmation, defense counsel argued that newly enacted CPL 245.70(3) contemplated that the defense be notified of an application for a protective order and afforded an opportunity to be heard on the issue before the order is granted. Counsel also contended that the order had been improvidently granted because the defendant had not threatened or tried to intimidate the two witnesses and had no history of threatening or intimidating witnesses or tampering with evidence. In an affirmation in opposition, the prosecutor set forth most of the information and arguments the People had relied upon in support of the original application for a protective order, except for that which might reveal the identity of the two subject witnesses. Based upon the information provided, she argued that numerous circumstances in this case establish a significant risk that the two witnesses would suffer physical harm or be subjects to threats of harm, intimidation, harassment or unjustified annoyance if their identities were revealed to the defendant. These circumstances include: (1) the violent nature of the crime, which began with repeated threats to harm the victim and culminated in stabbing him to death; (2) the defendant’s criminal history, which includes a 2006 conviction of burglary in the second degree arising from an incident in which the defendant and another individual, both armed, approached a couple and their four-month-old baby as the couple was entering their home, robbed them at gunpoint, and then forced them inside where they bound them with duct tape, cut their landline telephone, took their cellphones, and stole valuables including jewelry before fleeing in the couple’s car, and a 2003 conviction of criminal possession of a loaded firearm in the third degree arising from an incident in which the defendant and two other individuals approached the victim, began punching and kicking him, and then fired shots at him; (3) the criminal history of the defendant’s brother Christopher Cole, which includes a prior conviction of burglary in the second degree, and the criminal history of the defendant’s uncle Aaron Cole, which primarily includes drug related convictions; (4) threats to witnesses and other acts of intimidation, harassment, or unjustified annoyance or embarrassment, consisting of the defendant’s threats to stab the victim prior to actually stabbing him, a text message sent by the defendant eight days after the homicide in which he instructed the recipient to tell someone called “Smurf” that “when I catch him he next,” and a statement made by the defendant’s sister to members of the victim’s family that “if my brother gets locked up, it’s gonna go down”; and (5) lack of community cooperation with law enforcement due to fear of retaliation and community-wide intimidation, and the defendant’s familiarity with and access to the subject witnesses. The prosecutor further contended that the protective order was properly issued ex parte, emphasizing that CPL 245.70(1) expressly authorizes ex parte applications. She also pointed out that while the new statutory framework greatly expands disclosure requirements, it also significantly broadens the authority of the court to grant protective orders. In this regard, the prosecutor pointed out that CPL 245.70(4) lists new additional factors that the court can consider in determining whether good cause exists for the issuance of a protective order, including “the nature and circumstances of the factual allegations in the case.” She further contended that while the new statute, like its predecessor, gives the court the option of directing “attorney-eyes-only” disclosure, this option would not alleviate the risk to the safety of the civilian witnesses in this case. In this regard, she argued that directing attorney-eyes-only disclosure creates a potential conflict by pitting the duty a defense attorney owes to his or her client against the court order. In addition, an attempt to investigate the witnesses by questioning them or seeking to unearth impeachment material by approaching their acquaintances might signal to the defendant the identity of the witnesses. The prosecutor added that any prejudice to the defendant from full non-disclosure would be minimized because any impeachment evidence, and other information related to the case, would still be provided in time for the defendant to make meaningful use of it at trial. On January 29, 2020, the prosecutor and defense counsel appeared in chambers and the court heard argument on the defendant’s motion. Defense counsel explained why he believed that the two witnesses at issue were critical to the prosecution of the case, and stated that he would either like to go out into the community with his investigator, or have his investigator go out into the community on his or her own, to speak to the witnesses about what they observed and what occurred at the photo array. Counsel further argued that the People had failed to show good cause for the issuance of a protective order, emphasizing that there was no evidence that the defendant or his family had had any contact with or threatened the subject witnesses. He also maintained that the prosecutor’s reliance on the fact that two of the defendant’s relatives had criminal records was simply a “guilt by association” argument rather than evidence of intimidation. Although counsel acknowledged that the defendant had a criminal record, he maintained that there was nothing in the defendant’s record which indicated that the defendant had ever previously threatened or intimidated witnesses. Thus, he submitted that the assumption that the defendant would do so in this case was speculative. In response, the prosecutor pointed out that one of the defendant’s prior convictions involved an incident in which he and accomplice tied up a couple inside their home leaving them unable to care for their four-month-old baby, threatened to kill them if they called the police, cut their landline phone, and took their cell phones. Although she acknowledged that there was no evidence that the defendant or his family had threatened the subject witnesses, she pointed out that they did not know the identity of the witnesses. The prosecutor also recounted, as indicated in her affirmation, that when members of the defendant’s family went to the home of the victim’s family, the defendant’s sister apologized for the murder and “stated in sum and substance, if my brother gets locked up it’s going to go down.” She further asserted that the defendant’s text “tell Smurf when I catch him, he next,” which was sent while he was on the run in this case, was a threat of actual murder. The prosecutor additionally explained that the reason she included the criminal histories of the defendant’s brother and uncle in the application for a protective order was that these two individuals had assisted the defendant in fleeing the jurisdiction and evading arrest. She also noted that in her 13 years as a prosecutor, she had personally experienced, in multiple cases, instances where people did not want to come forward “when they have been outed in communities as someone [who is] cooperating with the police or with the District Attorney’s office.” Furthermore, she knew of witnesses to the subject homicide who were reluctant to come forward. Defense counsel countered by pointing out that sometimes witnesses are reluctant to come forward simply because they don’t want to get involved. He also submitted that even if the defendant’s family members had helped him leave the city, it was “quite another thing to threaten or intimidate a witness.” Counsel further pointed out that the prosecutor admittedly did not know who “Smurf” was, and that the supposed threat against Smurf could be unrelated to this incident. When the court asked counsel whether it would be sufficient to provide him with information and materials concerning the two witnesses for his eyes only, counsel replied that he would not be happy with that, but that if that was the only alternative, he would ask that he and his investigator be provided with the information and materials with the understanding that it not be revealed to the defendant. When asked how he would secure the information, counsel stated that he would not “intentionally” give it to the defendant, and could place it in a locked container, if necessary. Counsel further stated that he did not believe that providing him with identifying information for the witnesses 30 days prior to trial would be sufficient, arguing that their memories would fade, and that it would not satisfy the new statutory framework for discovery. Over defense counsel’s objection, the court then permitted the prosecutor to make additional argument and provide additional information ex parte. Upon consideration of the arguments presented in support of and in opposition to the defendant’s motion, and the additional information provided ex parte, the court denies the defendant’s motion to unseal and vacate the protective order issued on January 15, 2020. New York’s new statutory scheme for pretrial disclosure in criminal cases, set forth in CPL article 245 effective January 1, 2020, substantially expands the People’s disclosure obligations. The new discovery rules essentially afford the accused “open file” discovery, requiring prosecutors to initially provide automatic disclosure of 21 categories of items and information within 15 days after the defendant is arraigned on any accusatory instrument (CPL 245.10, 245.20). Among the items and information subject to automatic disclosure are the transcripts of all witnesses who testified before a grand jury (CPL 245.20[1][b]), and the names and adequate contact information for any civilians who have evidence or information relevant to the case (CPL 245.20[1][c]). In announcing the highlights of the various criminal justice reforms enacted as part of the 2020 fiscal year budget, Governor Cuomo explained that as part of New York’s commitment to “a fairer criminal justice system,” the state’s “antiquated discovery process,” had been transformed to require that both prosecutors and defendants share all information in their possession well before trial (Governor Cuomo Announces Highlights of FY 2020 Budget. April 1, 2019, retrieved from https://www.governor.ny.gov/news/governor-cusomo-announces-highlights-fy-2020-budget). However, the governor also noted that legislation was intended to “ensure that victims and witnesses are protected from intimidation and other forms of coercion by providing prosecutors with the ability to petition a court for a protective order, shielding identifying information when necessary to ensure the safety of witnesses and the sanctity of the judicial process” (id.) Legislative debate concerning the enactment of the new discovery rules indicates that the ability to obtain a protective order was considered an important safeguard for the safety and privacy of victims and civilian witnesses. During the senate floor debate which took place on March 31, 2019, the sponsor of the new legislation responded to concerns about the disclosure of contact information for victims and witnesses by explaining that “this statute was drafted after negotiations that took prosecutors’ concerns into effect. So I would say that there would be a high possibility of, again, if a prosecutor applies for a protective order, considering the standard is good cause shown, considering that we are making it quite reasonable, considering the language that is applied in the statute, that a prosecutor would have every opportunity, every possibility to obtain a protective order” (3/31/19: 2596). After the sponsor acknowledged that under the new discovery rules prosecutors would be required to turn over the grand jury testimony of victims much sooner, a fellow senator asked the sponsor whether he agreed “that victims and witnesses do not have the same level of protection that they formerly had when this information was released at a much later date?” (3/31/19: 2602). The sponsor responded to this concern by stating: “I would not agree with that. There is a broader protective order under this bill than there is in the current law” (3/31/19: 2602). Asked whether it would be fair to say that under the new statute, “if you are the victim of a rape or you are the victim of a sexual predator or a family member of yours has been murdered, that information is now more disclosable than ever unless you get a special dispensation from the court?” the sponsor relied “the language is carefully drafted so that a protective order can be obtained via the standard of good cause shown, which is a very reasonable and very low standard to obtain a protective order. Lenient standard. I should not say low” (3/31/19: 2604). Consistent with the legislative intent reflected by the senate debate, CPL 245.70 which now governs the issuance of protective orders expands the illustrative list of factors that a court may consider in determining the existence of “good cause”. Under the former statutory provision, the list of examples that would constitute “good cause” for the issuance of a protective order consisted of “constitutional limitations, danger to the integrity of physical evidence or a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person or an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors which outweighs the usefulness of the discovery” (former CPL 240.50[1], repealed by L. 2019, c, 59, pt. LLL, §1, eff. January 1, 2020). To those examples of good cause, CPL 245.70 additionally provides that the court may consider, inter alia, danger to 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; the nature, severity, and likelihood of a risk of an adverse effect upon law enforcement; 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 the protective order, including the option of employing adequate alternative contact information; and the danger to any person stemming from factors such as the defendant’s substantiated affiliation with a criminal enterprise (CPL 245.70[4]). Before evaluating whether a showing of good cause for issuance of the protective was made in this case, the court will address defense counsel’s argument that it was improper to grant the protective order in the first instance without providing him with notice of the application and an opportunity to be heard. Former CPL 240.90(3) expressly permitted “papers and testimony on a motion for a protective order to be submitted ex parte” (People v. Contreas, 13 NY3d 268, 273 [2009]), providing in this regard that “[w]here the interests of justice so require, the court may permit a party to a motion for…a protective order…to submit papers or to testify ex parte or in camera.” This language permitting an application for a protective order to be submitted ex pare is substantially incorporated in CPL 245.70(1), which provides, in relevant part, that “[t]he 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.” And although CPL 245.70(3) requires the court to conduct an “appropriate hearing” upon the People’s request for a protective order unless the defendant voluntarily consents to the relief sought, “the statute does not a require that defense counsel participate in the ‘appropriate hearing’…in every case, or event to have prior notice of it” (People v. Bonifacio, ____AD3d____, 2020 NY Slip Op 00517 [2nd Dept. January 23, 2020]). Accordingly, this court had the authority to entertain the People’s initial application for a protective order ex parte, and to conduct a hearing on the application in the absence of defense counsel. However, since the new discovery scheme “recognizes the importance of parties and the court taking available measures to attempt to resolve discovery disputes and reach reasonable accommodation” (id.; see CPL 245.35[1]), upon defense counsel’s objection to the protective order, the court directed counsel to submit papers, and heard argument on the defendant’s motion to vacate the protective order. In addition, the People’s opposition papers apprised counsel of most of the information and arguments set forth in the original application for a protective order, withholding those portions that might reveal the identity of the subject witnesses. Thus, defense counsel was afforded a meaningful opportunity to make arguments in support of the motion to vacate the protective order (see People v. Nash, ____AD3d____, 2020 NY Slip Op 520 [2nd Dept. January 27, 2020]). Furthermore, the court finds good cause for the issuance of the protective order delaying disclosure of identifying information concerning two of the witnesses in this case until the commencement of trial. Among the factors that a court may consider in determining good cause under CPL 245.70(4) is danger to the safety of a witness. The court may also consider the risk of intimidation and “the nature, severity, and likelihood of that risk”, and “the nature and circumstances of the factual allegations in the case. Here, the defendant is charged with murder in the second degree for allegedly stabbing a man to death, and the facts underlying his prior convictions for burglary in the second degree and criminal possession of a firearm show that both of those convictions involved the commission of violent acts. Indeed, the facts underlying the defendant’s burglary conviction indicate that he and an accomplice, both armed with weapons, robbed a couple with a four-month-old baby, forced them inside their home, and bound them with duct tape before stealing valuables and the keys to their vehicle. During that incident, the defendant and his accomplice also cut the wires to the couple’s landline telephone and took their cellphones in an apparent attempt to impede their ability to report the crime to the police. Furthermore, the two relatives who assisted the defendant in fleeing the jurisdiction and initially evading arrest, his brother Christopher Cole and his uncle Aaron Cole, also have criminal records. In addition, eight days after the subject homicide, while he was still at large, the defendant texted a message to another individual directing him to tell “Smurf” that “he next.” As defense counsel points out, the identity of “Smurf” is unknown, and there is no proof that “Smurf” is a potential witness in this homicide case. Nevertheless, a statement by a murder suspect directing an associate to tell someone that “he next” is a clear threat of harm that is relevant in assessing the risk to the civilian witnesses who are the subject of the protective order in this case. In addition, the statement made by the defendant’s sister to members of the victim’s family, that “if my brother gets locked up, it’s gonna go down” indicates that witnesses to the homicide may be at risk of harm or threat of intimidation. While defense counsel pointed out that the subject witnesses have not been threatened, the persuasiveness of his argument is undercut by the fact that the identity of these witnesses has not been revealed. With regard to the “nature, severity, and likelihood of a risk of an adverse effect upon law enforcement,” the prosecutor represented that she has personally been involved in multiple cases where civilians did not want to come forward as witnesses once it had been revealed in their communities that they were cooperating with the police or the District Attorney’s office, and that she knew of witnesses to the subject homicide who were reluctant to come forward. Revealing the identity of witnesses to a violent homicide to the accused killer many months in advance of trial may well make the witnesses reluctant to testify, hampering the ability of the People to prosecute this case. This court is mindful of the fact that the aim of reforming New York’s discovery laws is to foster fairness by ensuring the early exchange of evidence, but that goal must be balanced against the potential threat to civilian witnesses. In this case, the potential threat to the witnesses, and the potential adverse consequences to law enforcement, outweigh the benefit of releasing identifying information pre-trial. The court has also considered alternative to the full protective order requested by the People, including the option of directing that the identifying information and materials be provided to defense counsel alone, or to defense counsel and his investigator. While this court has no doubt of defense counsel’s integrity and willingness to abide by a directive that he not share identifying information with the defendant, counsel’s assurance that he would not “intentionally” disclose identifying information does not foreclose the possibility counsel could inadvertently reveal information that would allow the defendant to discern the identity of the witnesses. Moreover, counsel seeks disclosure so that he and/or his investigator can go into the community to attempt to speak to the witnesses and to obtain potential impeachment evidence. This would create a very real possibility that members of the community, including the defendant and the defendant’s friends and family, could learn of the identity of the witnesses. Given all of the circumstances of this case, the court is not convinced that directing “attorney’s eyes” disclosure would be sufficient to safeguard the identity of the witnesses. Finally, the court notes that defense counsel indicated at the appearance on January 29, 2020 that he was aware of what the subject witnesses are alleged to have observed from the discovery materials that have already been provided to him. To the extent that any additional materials, including grand jury testimony, can be sufficiently redacted to shield the identity of the witnesses, the prosecutor should provide those materials to defense counsel forthwith. Dated: February 25, 2020
