People v. Belfon, 2020–02113
| Citation | 121 N.Y.S.3d 346,181 A.D.3d 696 |
| Decision Date | 11 March 2020 |
| Docket Number | Ind. No. 1981/19,2020–02113 |
| Parties | The PEOPLE, etc., Plaintiff, v. Latrell BELFON, Defendant. |
| Court | New York Supreme Court Appellate Division |
DECISION & ORDER ON APPLICATION
Upon the papers filed in support of the application and the papers filed in opposition thereto, and upon oral argument, it is ORDERED that the application is granted, the ruling and the protective order are vacated, and the matter is remitted to the Supreme Court, Nassau County, for a new hearing pursuant to CPL 245.70(3) in accordance herewith; and it is further,
ORDERED that the documents submitted under seal by the People in connection with this application pursuant to CPL 245.70(6) are deemed to be filed under seal, and shall continue to be sealed.
The defendant was charged in an indictment with attempted murder in the second degree, and other lesser crimes. The People made an ex parte application for a protective order pursuant to CPL 245.70 regarding certain information otherwise subject to automatic disclosure within days of arraignment pursuant to CPL 245.10 and 245.20. The Supreme Court granted the application after conducting an ex parte proceeding. Upon a prior application pursuant to CPL 245.70(6), I vacated the protective order and remitted the matter to the Supreme Court to afford the defendant an opportunity to make arguments to that court with respect to the People's application (see People v. Belfon , 179 A.D.3d 981, 114 N.Y.S.3d 720 ).
A hearing was conducted upon remittal. However, at the outset, the court declined to direct that the People disclose the general nature of the information sought to be protected and also declined to direct that the People disclose the reasons why they were seeking a protective order. In particular, defense counsel inquired as to whether the People were asserting that the defendant was connected to a gang that would make it more likely that witnesses would be harmed. Defense counsel requested that the information at least be disclosed to counsel for their eyes only. This request was also denied. The court then directed that defense counsel and the defendant be excluded from the courtroom, conducted further proceedings ex parte, and thereafter the court issued a new protective order that was substantively identical to the first one.
I agree with the defendant that the People should have been required to disclose to defense counsel the general nature of the information that the People sought to be protected (see CPL 245.10[1][a] [] ).
The defendant and his counsel were not informed as to whether what was sought to be protected were only witness names and personal information as opposed to witness statements, police reports, grand jury testimony, video or audio recordings, or other evidence.
I also agree with the defendant that, under the circumstances of this case, the People should have been required to disclose information about the reasons for the application that would not reveal the existence of the information sought to be protected. As I...
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