People v. Collazo

DECISION AND ORDER Defendants David Collazo, Jeremy Lopez, Blake Martinez, and Louis Rodriguez have been charged with acting in concert to commit murder in the second degree in violation of Penal Law (PL) §125.25(3), robbery in the first degree in violation of PL §160.15(4), criminal possession of a weapon in the second degree in violation of PL §265.03(1)(b), and assault in the second degree in violation of PL §120.05(6). Defendant Collazo is additionally charged with murder in the first degree in violation of PL §125.27(1). The People move pursuant to Criminal Procedure Law (CPL) §245.70(1) for a protective order: (a) Delaying until the commencement of jury selection the disclosure of the names and contact information, as well as otherwise discoverable information that would identify or tend to identify the witnesses or reveal the extent of their cooperation with law enforcement of Person 1, Person 2, Person 3, N.S. and J.D.; b) Restricting the disclosure of the names and contact information, as well as otherwise discoverable information of Person 4 and Person 5 to defense counsel only; (c) Requiring that the information and materials described in paragraph (b) remain restricted under the terms set forth in paragraph (b) and that disclosure to the defendants be denied, absent a showing of good cause by the defense why disclosure to the defendants is necessary; (d) Denying disclosure of the name and contact information of Person 6, and the substance of any information that Person 6 provided top law enforcement, as well as otherwise discoverable information and material that, if disclosed would identify or tend to identify this individual, to reveal the extent of his cooperation with law enforcement; (e) Permitting police or other witnesses to testify at any pre-trial hearings without disclosing the names of any of the eight aforementioned witnesses; (f) Requiring that once the information described above is disclosed, such materials, including any witness key provided by the People, be kept in the sole possession of defense counsel, and shall not be copied, disseminated, or disclosed in any form by defense counsel, except to those employed by counsel or appointed to assist in the defense of this matter. (g) Requiring that, once the information described in a is disclosed, defendant’s review of the information and material subject to this protective order shall occur only in the presence of defense counsel; and (h) Prohibiting any person who receives information and material subject to a protective order in this case from posting it to a social media platform. Each of the four defendants opposes this motion. Background The allegations against the defendants are as follows: the defendants are accused of acting in concert to rob an individual at gun point on December 17, 2021, in the Inwood neighborhood of Manhattan. Defendant Rodriguez drove the co-defendants there and remained in the car while the other three defendants exited and approached a minivan. The minivan was occupied by an individual selling marijuana (referred to in the discovery materials and hereafter as “Person 2″). Another person stood on the sidewalk near the minivan serving as a lookout and security for the marijuana selling operation (hereafter “the decedent”). A third individual stood on the sidewalk next to the lookout (referred to in the discovery materials and hereafter as “Person 1″). The defendants approached the minivan and demanded money and marijuana from Person 2. Defendants Martinez and Collazo pointed firearms at Person 2. Person 2 complied and handed over a bag containing money and marijuana, which was passed to Defendant Lopez. The decedent observed Person 2 being robbed and subsequently pointed his own firearm in the direction of the three defendants. Defendant Collazo responded by pointing his firearm at the decedent, and the two exchanged gun fire, with Collazo firing five shots and the decedent firing two. One of Collazo’s shots hit the decedent in the head, killing him, and a second shot hit Person 2 on the arm, injuring him. Defendants Collazo, Martinez, and Lopez fled on foot until they reunited with defendant Rodriguez several blocks later and the four drove away. The People presented their case to the grand jury between October 12, 2022, and October 20, 2022, and the defendants were indicted for the aforementioned offenses. On October 28, 2022, defendants Rodriguez and Lopez were arrested in their homes. Defendants Collazo and Martinez were already in custody serving sentences on other matters. On August 18, 2023, the People filed a motion for a protective order as described above under partial seal. On September 20, 2023, counsel for Collazo and Rodriguez filed affirmations in opposition to the People’s motion. On September 14, 2023, the court held a hearing on the protective order with regard to Lopez. On October 5, 2023, the court held a hearing on a protective order with regard to Martinez and Rodriguez. Discussion The People argue that their motion for sweeping discovery protections against all defendants and their counsel is supported by good cause and is therefore in accordance with Criminal Procedure Law §245.70. The text of the first part of the statute is reproduced below: 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. N.Y. CRIM. PROC. LAW §245.70. Defense counsel argues that granting the motion would deprive the defendants of their rights to adequately investigate their cases and present defenses, particularly because the motion seeks to prevent defense counsel and not just the defendants themselves from accessing certain information. While the People’s application does point to several particularized “good cause” factors that support the issuance of a protective order (see below), the crux of their argument is that CPL §245.70 should be interpreted broadly enough that their showing here justifies the withholding from the attorneys. They say: “[i]t is clear from the text of CPL §245.70(4), which expands the non-exhaustive list of factors that may be considered by the Court in weighing good cause, that the statute imposes a more favorable standard on the movant than its predecessor. The legislative history confirms that such a result was intended by the statute’s drafters.” People’s Affirmation, pg. 25. After careful review of the text of the statute, relevant legislative history, and legal precedent, the court declines to adopt the People’s exceptionally sweeping view of the statute, and its blanket application to the defense as opposed to the defendants. The court finds that the statute instead requires, in all but the most unusual of circumstances, that defense counsel not be barred from reviewing discoverable but sensitive materials, as long as the information is not shared with defendants. 1. Good Cause Factors The People argue that several of the factors in §245.70(4) weigh in favor of granting the order of protection in its entirety. First, the People assert that the violent nature of the offense supports the need for protective measures. Second, the People claim that witnesses currently cooperating with the police investigation are fearful for their personal safety and may be endangered and/or cease their cooperation if their identifying information is disclosed “far in advance of trial.” People’s Affirmation, pg. 28. Third, the People point to the violent criminal history of some of the defendants. There is no question that the offense the defendants are charged with is a violent crime. The defendants are alleged to have been involved in an armed robbery that resulted in the death of one person and the serious injury of a second. However, the People’s second argument is less persuasive. While they state in their motion that Person 1 and Person 2 “have expressed a wellfounded fear of the defendants and apprehension that their identities will become known to them,” the People cite no further details of why the witnesses are afraid or what makes their fear “wellfounded.” People’s Affirmation, pg. 27. The People do not cite any evidence that the crime was gang-related. See People v. Griggs, 180 A.D.3d 853, 855 (2d Dept. 2020). Critically, the People can point to no instances in which any of the defendants threatened, retaliated against, intimidated, or harassed any of the witnesses. As counsel for Lopez argued, “the People’s description of their fear of these defendant[s]¹ Counsel for Martinez made a similar argument, pointing out that nothing in the history the People laid out suggested Martinez specifically intimidated anybody “or anything of that nature.² Neither do the People draw any distinctions among the defendants. As to the People’s third factor, criminal history, the court notes that only two of the defendants have a history of convictions of any kind. Defendant Lopez has no prior contacts with the criminal justice system, and Rodriguez has one prior arrest but no prior convictions. The People’s request to withhold information from all four defendants and their attorneys because two defendants have significant criminal histories is not tailored to each individual defendant and therefore overly broad. CPL §245.70(4) also suggests consideration of whether a defendant has a “history of witness intimidation or tampering” or a “substantiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law.” N.Y. CRIM. PROC. LAW §245.70 (LexisNexis 2022). However, the People make no argument that either of these factors apply to the present matter. 2. Text of CPL §245.70 As reproduced above, CPL §245.70(4) enumerates the multitude of factors the court should consider when determining whether good cause has been shown. The People are correct that this list of factors is considerably lengthier than its predecessor. CPL §240.50, now repealed, named the following factors for the court’s consideration of whether good cause existed to grant a protective order: …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 discovery. N.Y. CRIM. PROC. LAW §240.50 (LexisNexis 2022). However, the court must consider the entirety of CPL §245.70. Defense counsel objects primarily to the People’s proposed remedy: to prevent them — rather than just their clients — from accessing witness information prior to trial. CPL §245.70(1) opens with expansive language, stating that, “[u]pon 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…” N.Y. CRIM. PROC. LAW §245.70 (LexisNexis 2022) (emphasis added). Following this, the statute goes on to contemplate potential examples of restrictions or conditions that the court can impose. Many of the restrictions described above suggest limiting disclosure of sensitive information to counsel for the defendant only. In contrast, preventing the defense counsel from accessing discoverable information until the eve of trial is not contemplated by the statute. Expressio unius est exclusio alterius describes “a universal principle in the interpretation of statutes…That is, to say, the specific mention of one person or thing implies the exclusion of other persons or thing.” N.Y. CONSTRUCTION AND INTERPRETATION LAW §240 (McKinney 2023). This principle, although not absolute, guides that where a law expressly describes a particular act, thing, or person to which it applies, an inference arises: that what is not included was intended to be omitted and excluded. In this sense, the language of the statute does not support an interpretation preventing defense counsel from accessing discoverable information in ordinary circumstances. The absence of an explicit reference to the possibility of a complete stay of discovery pending jury selection is surely not the equivalent of a prohibition. Yet the way the statute is framed does suggest that a broader ruling should be reserved for a much narrower category of cases, those in which the prosecution can show some complicity by defense counsel, or that an investigation even by counsel alone poses a threat to a witness. More blanket prohibitions on discoverable materials, however, essentially take us back to discovery under the prior statute (CPL §240), which has been repealed. 3. Legislative History CPL §245.70 was passed in 2019 as part of “a sweeping criminal justice reform legislation package” contained in Senate Bill 1716.³ The People argue that there was “an obvious intent on the part of the Legislature to establish an expanded protective order practice to counterbalance the statute’s otherwise liberal discovery obligations.” People’s Affirmation, pg. 25. The People cite Senator Jamaal Bailey, the bill’s primary sponsor, who said during a floor debate about the new discovery legislation, “there is a broader protective order under this bill than there is in the [then] current law” and that the good cause standard in the new legislation is a “very reasonable and…[l]enient standard.” Id. This is an argument that the District Attorney’s Office makes generally in moving for protective orders. Other courts that have cited the legislative history of this statute have concurred with People’s interpretation. See e.g., People v. Shamel Rodriguez (Sup. Ct., Bronx. Co., 2020). Some degree of review of the legislative history is appropriate in deciding questions under statutes which represent a marked change from the past. The court agrees that the legislative history indicates an intention to establish broad protections for victims and witnesses. See Senate Debate Transcript of Senate Print 1509C, Mar. 31, 2019, at 2602 (“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.”). It is necessary, though, to consider the full context of S. 1716 and statements made in the legislature about it, including from Senator Bailey. There can be little disagreement that this Senator intended the law to increase the amount of information shared between the parties. On October 28, 2019, Bailey spoke at greater length about the bill: One of the reasons why discovery was just really important, in my opinion, was just because it’s about knowing what you’ve been accused of. And — and that — and that’s, essentially, what it’s distilled down to. And — you know, and if you’re — you’re forced to take a plea, and — and you’re asking somebody to condition their life upon something, and place your hands in — and place your life in the hands of people that you don’t know, and if you’re a poor indigent person, you really haven’t met them prior to the assignment of counsel, and they come before you and they say, hey, you know, I don’t have everything, but guess what? You can go home right now if you take this, or, you’ll only do four years if you take this. And — and, again, I — I am not judge, jury, or, you know, anything else, but what I am is somebody who have — who — who’s seen this play out in my community in real life. Public Hearing Transcript of S1509, Oct. 28, 2019, pg. 255, l. 2-16. Later in the hearing, Bailey added, “when a monetary matter is on the line, the civil statutes allow for broad and sweeping discovery. Yet, when life and liberty are on the line, and — and, sometimes, in all of conversations and arguments we’ve had on this, we forget to make these points.” Id. at pg. 280, l. 7-13.⁴ The legislature was certainly aware of the threat of intimidation and danger of retaliation that witnesses can be subject to, and the statute reflects this. The statute attempts to strike a balance between the obligation to protect witnesses cooperating with law enforcement and the constitutional right of a criminal defendant to investigate his or her case and prepare a defense by offering the explicit suggestion that defense counsel may have certain information before the defendant. However, granting the People’s request to prevent the defense counsel from accessing information about key witnesses because the charged offense is serious and there are generalized concerns about the defendants is in contradiction with the spirit of CPL §245.70 overall. 4. Case Law Following the passage of CPL §245.70, a number of courts have contemplated what the appropriate scope of protective orders should be under the statute. While courts have often granted protective orders that delayed the defendant form accessing information, they have repeatedly declined to extend protective orders to prevent defense counsel from accessing the same. See e.g., People v. Harvey, 2020 NYLJ LEXIS 286 (Sup. Ct., Bronx. Co.) (granting the protective order with regard to the defendant but stating that “defense counsel needs to review prior witness statements in order to properly prepare for trial…the People have properly conceded in their application that defense counsel be provided with the Grand Jury minutes.”); People v. Escobales, 204 A.D.3d 1157 (3d Dept. 2022) (ruling that “[d]efense counsel should, with the appropriate caveat not to disclose them to or discuss their contents with his client pending determination of the application, be permitted to view the application and the materials at issue and thereby meaningfully participate in the hearing before County Court in order to advocate on behalf of his client and assist in reaching an appropriate outcome.”). On the rare occasion courts have seen fit to include defense counsel in a protective order, courts have emphasized this is an extreme measure that should be utilized sparingly. See, e.g., People v. Contreras, 12 N.Y.3d 268, 273 (2009). In that case, Judge Smith, writing for a unanimous Court, stated that “ex parte proceedings are undesirable, and they should be rare”, adding that “[p]rosecutors and trial judges invite trouble when the push the rules of disclosure to their limit.” Id. at 285. The People cite case law in support of the issuance of their desired form of protective order; but these cases can be distinguished from the matter before the court. For example, the People cite People v. Phillips, 67 Misc. 3d 196, 201 (Sup. Ct., Bronx. Co., 2020), in which court opined that, “the legislature eased the ‘good cause’ showing required where a risk of witness safety or harassment is alleged in part to balance the new requirement that witness names and contact information and other sensitive discovery [such as grand jury testimony] be provided long before a trial begins.” However, in Phillips, the issue was whether there was good cause for a motion preventing defense counsel from copying the grand jury minutes, providing the defendant with a copy of the minutes, or disclosing the name and contact information of the complaining witness to the defendant or a third party. Id. at 197. At no point did the People request that the defense counsel in addition to the defendant be prevented from accessing the grand jury minutes or the complaining witness’s information. In fact, the court defended its decision to grant the People’s protective order by explaining that defense counsel would have access to information: This type of very limited protective order provides defense counsel with evidence necessary to prepare for trial. It satisfies the statutory mandate of early automatic disclosure to counsel. It also serves the legislative purpose of restricting the scope of statutory discovery in situations where a court finds good cause that a witness in a future trial in that particular matter is at risk of harm. In this case, counsel will have the discovery. Id. at 205 (internal quotations omitted). Additionally, the People cite People v. Cole, 2020 NYLJ Lexis 537, *21 (Sup. Ct. Queens Co., 2020), in support of their assertion that revealing witness information long before trial may make witnesses hesitant to testify. The court in Cole does make this statement, and also upholds granting an expansive order of protection similar to the one at issue in the present matter. However, the facts in Cole differ dramatically from those in the matter before the court today. In Cole, the defendant and his family members threatened and harassed potential witnesses following the commission of the crime. Specifically, the defendant texted an individual with instructions to inform a third party that “when I catch him he next,” and the defendant’s sister told members of the victim’s family “if my brother gets locked up, it’s gonna go down.” Id. at 7. As discussed previously, there are no allegations of witness intimidation or harassment by any of the defendants in the matter before the court. Furthermore, the defense counsel in Cole failed to offer adequate assurances to the court that he would scrupulously guard sensitive witness information if provided to him on the provision he could not share it with anyone, including the defendant. When the court asked defense counsel how he would “secure the information,” he said that he would not “intentionally” give the information to the defendant. Id. at 12. By contrast, during the October 5, 2023 hearing on the protective order with regard to defendants Blake Martinez and Luis Rodriguez, counsel for Martinez argued persuasively in favor of disclosure of witness information to him and his investigator alone. Counsel for Martinez stated: [The prosecutor] suggested there is trauma to Witnesses 1 and 2. And while we are certainly sympathetic to that, there is no reason to think that myself or my professional team would do anything to harass or intimidate anybody…there is nothing that says [Martinez] specifically ever intimidated anybody or anything of that nature. But any concerns about that are certainly alleviated if the ruling of the Court is that the information comes directly to me and my team. And if I’m ordered to not turn that over, we [] obviously would follow that. Lastly, the People cite People v. Frost, 100 N.Y.2d 129, 134 (2003), in their motion, which held that defense counsel could be excluded from an ex parte hearing because doing otherwise “would defeat the whole point of a legitimate [ex parte request],” in support of their contention that defense counsel should be excluded from certain proceedings. However, the court in Frost emphasizes multiple times that the matter before the court involved “exceptional circumstances” and that “ex parte hearings are not to be granted lightly and are unwarranted and impermissible in the vast majority of cases.” Id. In short, the case law supports the defendants’ position as articulated by counsel for defendant Collazo, i.e. that it is one thing to preclude the defendant from possessing information, but quite another to hamstring the defense counsel from conducting an appropriate investigation. See Affirmation in Opposition, pg. 2. Defendants’ attorneys are officers of the court and must obey court mandates. Should defense counsel find themselves in an untenable position because of a protective order, it is incumbent on them to come before the court. See People v. DePallo, 96 N.Y.2d 437 (2001). For the discovery statute to function as intended, the court must trust that defense counsel will obey lawful orders of the court and to be mindful in these circumstances to carefully safeguard protected information. Conclusion In the absence of any allegation of witness intimidation or harassment or impropriety on the part of defense counsel, the court cannot find that such a sweeping order of protection is warranted. Most witnesses do not want to be involved in a criminal case and often express a generalized fear for their safety. The court must balance that very real concern and the need for public safety with the right of the defense through attorneys and investigators to prepare a meaningful defense. See People v. Leon, 134 Misc.2d 757 (Co. Ct. West 1987). The court simply cannot grant protective orders in every case involving a violent crime in which one or more defendants have criminal history — that would essentially restore the state of discovery to the status quo prior to the passage of CPL §245.70. In filing this motion, the court notes that the People refrained from requesting a complete order of protection. In fact, the People themselves made use of the “attorney’s eyes only” provision in the statute with regard to two witnesses and agreed that information about these witnesses should be provided to defense counsel.⁵ Despite the partial concession, the court still finds the order requested by the People to be overly broad. There is no meaningful distinction under CPL §245 between the two groups of witnesses the People’s motion seeks to differentiate. The court declines to grant protective provisions (a) and (d), which would bar defense counsel from receiving the names and contact information of six witnesses until the commencement of jury selection. The court orders that in the names and contact information of Person 1, Person 2, Person 3, Person 6, N.S. and J.D. be provided as soon as possible to defense counsels only. Defense counsels are instructed not to share this information with their clients. Given the nature of the offense and the significant interest in ensuring the safety and cooperation of witnesses with law enforcement, the court finds good cause to grant provisions b, c (in part), and e-h. The court excepts from the protective order witnesses who will either be testifying at suppression hearings or who provided information central to the issues of suppression, but only with respect to the defendants who have been granted these hearings. The witness materials may be shared with these defendants before the commencement of the hearings. The People’s concerns about witness cooperation and safety are valid, but the court must balance this against these against the constitutional right of the defendants to prepare a defense. As suppression hearings are often critical aspects of this defense, defendants and their counsel should be able to confer with their counsel about the information provided by these witnesses and strategize in advance of the start of the hearings. In addition, the court finds it is not the defense obligation to demonstrate why a protective order should not be required, such as with regards to Persons for 4 and 5. The court will, however, entertain a renewed motion to further restrict witness discovery from the defendants should new information constituting good cause be presented. The People’s motion is granted in part. The court will issue a protective order in accordance with this ruling. Dated: December 6, 2023