Supreme Court, Bronx County, February 5, 2020

Darcel D. Clark, District Attorney, Bronx (Tala Nazareno of counsel), for plaintiff.

The Bronx Defenders, Bronx (Daniel Hamburg of counsel), for defendant.

Defendant is indicted for attempted robbery in the second degree, strangulation in the second degree, and related charges. On January 16, 2020, the People filed a motion for a limited protective order pursuant to CPL 245.70. The application seeks a court order directing defense counsel not to copy the grand jury minutes and give a copy of those minutes to the defendant or to any third party, and to order defense counsel not to disclose the name and contact information of the complaining witness to the defendant or to any third party. The People have not disclosed the name of the complaining witness in either the felony complaint or in the indictment. As a result, and at the complaining witness's request, they have not sought an order of protection, because in doing so the court issuing the order, and the defendant, would have to know the name of the witness protected. On January 28, 2020, defense counsel provided this court with a written response to the People's application. That same day, this court held a hearing on the People's application. Counsel waived his client's appearance. After hearing from both sides, the court reserved decision. The People's application is granted in part and denied in part.

[1] Following the hearing, the court finds that the People have demonstrated that good cause exists to issue the limited protective order requested for the complaining witness's grand jury testimony, her name, and her contact information. The court has considered all the factors listed under CPL 245.70 {**67 Misc 3d at 198} (4), including the effect of this limited order on the defendant's constitutional rights or limitations thereto. The court has also considered the variety of the listed remedies it could impose under CPL 245.70 (1), based on the case-specific good cause showing in this matter.

The first good cause factor considered is the nature and circumstances of the facts of this case, which are decidedly serious. The defendant is indicted for what is defined in law as a violent felony; the actual violent acts which the defendant and an unapprehended accomplice are alleged to have committed against this victim are quite disturbing. The defendant and his accomplice are alleged to have approached the female victim inside Roberto Clemente Park in Bronx County on August 9, 2018, at 9:10 p.m., well after sunset. The People allege that the victim was approached from behind and that the defendant grabbed the gold chain that she wore [*2]around her neck. The initial force used by the defendant did not break the chain, but it dragged the victim to the ground. The defendant kept hold of the chain and is alleged to have callously dragged the victim across the ground by the chain still fastened around her neck. The continuous, powerful force used by the defendant caused the victim to begin to have difficulty breathing. The People allege that an off duty law enforcement officer working for the postal police witnessed the attack and intervened. Although he identified himself as a postal police officer, the defendant continued pulling on the victim's chain. According to the People, this peace officer then pulled out his gun. New York City police officers also arrived and the defendant and the accomplice fled. The accomplice was unapprehended. Despite the force and the violence, the chain never broke. The court reviewed the indictment and court file during the hearing. The defendant was given notice of a number of statements he made to apprehending police officers. According to one police officer, the defendant said, "I can't go back to jail. Please, I just came from up North. Please, I need some water. I can't go back to jail. I'm on parole." According to the indictment, the victim experienced stupor and possible loss of consciousness due to the force defendant used when he pulled on the victim's chain, and the grand jury charged a count of strangulation. On December 3, 2019, upon review of the evidence before the grand jury, a judge of this court found that the evidence presented to the grand jury was legally sufficient to support all counts voted, including this one.{**67 Misc 3d at 199}

For a second good cause factor, the People have referred the court to the seriousness of the defendant's criminal history. Although he does not have a criminal record, and is therefore not a predicate felon, the defendant, who is now 20 years old, was given youthful offender adjudications on two separate prior felony cases. According to information listed under cycle one of the defendant's record, on September 18, 2015, he was arrested and charged with robbery in the second degree. He was subsequently indicted for two counts of second degree robbery; one count, under the theory that he caused physical injury to another person during the commission of the robbery, and the other count alleging that he was aided by another person actually present. The information listed under cycle two shows that the defendant was arrested for another robbery on October 13, 2015. He was subsequently indicted on that case and charged with robbery in the third degree, assault in the third degree, and related charges. On December 16, 2015, he pleaded guilty to the top count on both matters. He was adjudicated a youthful offender on May 17, 2016, and sentenced on each case to 11/3 to four years in state prison. He was initially released to parole supervision on September 25, 2018, and remains under parole supervision until March 16, 2020. Both sides informed the court that defendant is incarcerated for violating conditions of his parole, but neither side made a record of what if any parole violation has been alleged other than what is likely based on this indictment.

In terms of good cause of showing that the defendant harassed or engaged in other threatening criminal behavior, the victim has informed the People that sometime earlier on the day of the alleged robbery in this matter, the defendant and the unapprehended accomplice approached her in a completely different neighborhood and stood directly behind her. She saw them and asked them what they were doing; they responded they were "looking for Wi Fi." She was wearing the same gold chain at the time. The victim became nervous at their approach and she fled from them in a car.

The defendant's attorney argues that, despite the above-mentioned fact-specific showing which tracks factors specifically articulated in CPL 245.70 (4), the People have not established the requisite good cause for issuing any protective order that would prohibit him from providing [*3]the defendant with a copy of the grand jury minutes and the victim's name and contact information. Citing the statutory language in CPL {**67 Misc 3d at 200} 245.20 which says this discovery must be provided to the defendant, and the fact that at other points in article 245 the legislature uses the word defense counsel, the attorney argues that every time the legislature uses the word defendant in article 245 in terms of disclosure, the legislature meant that the discovery had to be provided to the defendant. Of course, no one has argued that the People must physically or electronically provide the discovery to the defendant. The court agrees that a criminal defendant has, and always had, the right to receive copies of unprotected documents provided to defense counsel as discovery. However, the legislature also uses the word defendant and not defense counsel in other parts of article 245 when referring to defense discovery obligations. For example, CPL 245.10 (2), called "Defendant's performance of obligations," states that "[t]he defendant shall perform his or her discovery obligations under" CPL 245.20 (4). The statute goes on to state that "the prosecution must be notified in writing that information has not been disclosed." (CPL 245.10 [2].) Under counsel's suggestion, that would mean that the defendant would have to provide the written notification. CPL 245.20 (4) (a), part of the "Automatic discovery" statute which is entitled "Reciprocal discovery for the prosecution," states that "[t]he defendant shall . . . disclose to the prosecution . . . any material and relevant evidence within the defendant's or counsel for the defendant's possession or control." If defendant's argument about interpreting every part of this statute by only its words is correct, that would mean that a court would have to find that the defendant himself or herself is required to disclose evidence in their custody to the People, and that it is the defendant's personal obligation to file a certificate of compliance with discovery under CPL 245.50 (2).

This is not meant to be an invitation for a prosecutor to make such a frivolous and probably unconstitutional argument in connection with the legislature's use of the word "defendant" rather than "defense counsel" in these statutes. Nor is it meant in any way to suggest that this court finds that the legislature intended to restrict all discovery provided under this statute to the exclusive use and possession of defense counsel. This court's purpose is merely to point out that in terms of the entirety of article 245, given the inconsistent drafting, courts may not be able in some cases to assume that the long-standing and quite basic rule of statutory construction, cited correctly by the defense in Matter of Orens v Novello (99 NY2d 180, 185 [2002]),{**67 Misc 3d at 201} applies to interpreting this statute. The task of resolving inconsistencies in the language is rendered impossible, because this statute was enacted as part of a budget bill; this court has searched in vain for some traditional type of legislative history for article 245 as enacted. When asked for that type of legal support during the hearing in this matter, both sides could point to no published legislative history.

Two things are unmistakable from the words of the statute: the legislature has unequivocally stated that there must be a "presumption in favor of disclosure" for the People's discovery obligations (CPL 245.20 [7]), and it has unequivocally stated that motions for protective orders connected with discovery obligations made by either party can be granted and a court can therefore limit, delay, or even order that discovery not be provided. (CPL 245.70 [1].) The new statute lists examples of factors for a court to consider in determining whether good cause has been shown for a protective order related to material designated as "automatic discovery," and grand jury testimony is part of "automatic discovery." Thus, the legislature left in place from former article 240 the court's ability to grant or deny discovery-related protective orders. In expanding the scope of the discovery, the legislature expanded the use of an [*4]application for a protective order to all newly listed discovery, including grand jury testimony.

The good news for the party seeking a protective order based in whole or in part on a threat of witness intimidation or safety is that there is a significant change from the former law about the good cause standard required for this type of application. For example, under CPL 245.70 (4), a court can determine that good cause exists to issue a protective order based on a "risk of intimidation, . . . harassment or unjustified annoyance or embarrassment to any person." Under the former CPL 240.50, the court had to find there was a "substantial" risk of the same type of harm. In addition, the new statute allows a court to consider "the safety of a witness" in making a good cause determination. (CPL 245.70 [4].) Once again, former CPL 240.50 required the court to find good cause existed of a "substantial risk of physical harm" to someone else. This court presumes that the legislature's deletion of the word "substantial" was purposeful. Although there is no legislative history to confirm or contradict this, it seems 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{**67 Misc 3d at 202} that witness names and contact information and other sensitive discovery be provided long before a trial begins. That same "risk" standard applies to grand jury testimony.

The court rejects the People's argument that the court should grant this application prohibiting defendant's physical possession of the grand jury minutes because to rule otherwise would violate grand jury secrecy rules in CPL article 190. Of course, grand jury secrecy rules have never been found to be a reason to restrict the disclosure by a prosecutor of discoverable grand jury testimony as Rosario material. The court is unaware of any case in which that argument was found to be meritorious, and itself has never had such an application made. The legislature has always mandated prior witness statements that were recorded were discoverable, and that was always found to include grand jury testimony, even though the statute never before said that there was a discovery requirement specifically calling for disclosure of "grand jury testimony." Moreover, grand jury secrecy rules, by statute, have not prevented the disclosure of grand jury testimony by a prosecutor to the defense in the lawful discharge of prosecutorial duties, which have included prosecutorial discovery obligations. (CPL 190.25 [4] [a].) That disclosure, however, was not required to be made under former CPL article 240 until the time of trial.

The People list general witness safety and public policy concerns connected with the "automatic discovery" timeline requiring disclosure of grand jury minutes in as little as 15 days after arraignment on an indictment. The court recognizes that those concerns are valid, and is in no way attempting to minimize them. The court understands that in this age of handheld phones that take clear-as-a-bell digital photos, the widespread use of social media to embarrass or "troll" individuals, and the fact that nothing posted anywhere is truly ever private again, any type of re-disclosure of any discovery, and perhaps especially grand jury testimony of crime victims, can impact on the fairness of criminal proceedings. (Cf. Gail Prudenti, Dealing With Rogue and Stealth Jurors, NYLJ, Feb. 3, 2020 at 6, col 4.) Yet, New York only has a statute that criminalizes disclosure of grand jury testimony by a grand juror or a person working in a grand jury. The legislature did not amend Penal Law § 215.70 to make it a crime for a defendant in lawful or even unlawful possession of grand jury testimony to disclose that transcript to anyone and by any means. This statute does not criminalize the action of a person, including a defendant,{**67 Misc 3d at 203} who receives such material in discovery, even subject to a nondisclosure order, and then disseminates to anyone else or decides to post the testimony on the Internet. [*5]Amending this statute would go a long way to deterring such dangerous conduct, and should do much to allay many of the People's justifiable fears.

It is not clear whether leaving this statute intact was purposeful, or whether the legislature ever considered it. However, in terms of enacting legislation about the timing of the disclosure of grand jury testimony under article 245, the legislature also left in place CPL 210.30 (3), which provides that a court can deny a request to disclose the grand jury minutes to a defendant in connection with a motion to dismiss an indictment absent a finding that such disclosure is "necessary to assist the court." That sends a mixed message to a court deciding a motion to dismiss an indictment and a motion for a protective order.

The absence of any sponsors' memoranda or bill jacket makes it impossible to determine if the legislature considered and rejected policy concerns connected to disclosure of grand jury transcripts to a criminal defendant via his or her attorney early on in a case. A recent unpublished ruling of a Justice of the Appellate Division, First Department, reviewing a trial judge's decision to grant a limited protective order restricting access of grand jury testimony to that defendant's attorney, states that "[t]he People's policy arguments about the general importance of grand jury secrecy . . . cannot be reconciled in this case with the statutory mandate that these materials be disclosed to defendant." (People v Swift, 2020 NY Slip Op 62172[U] [1st Dept, Jan. 27, 2020, Richter, J.].) Justice Richter found that the People were still required to demonstrate good cause to show that providing the defendant with a copy of the grand jury testimony in that case would "endanger the safety of a witness, or pose a risk of witness intimidation." (Id.) Since the People had not done so, Justice Richter reversed the trial judge's ruling. In the absence of any legislative history saying otherwise, this court reluctantly reaches the same conclusion. Based solely on the statutory language, the legislature seems to have enacted a law that has rendered irrelevant centuries of grand jury secrecy jurisprudence, and the public policy behind those rulings, in favor of a legal and public policy decision that requires transcribed grand jury testimony be given to an indicted defendant as part of "automatic discovery," and {**67 Misc 3d at 204}perhaps even without any limitation placed on the defendant's dissemination of the transcript, absent a showing of case-specific good cause.

In this case, based on this record, the court finds case-specific good cause to order that once the grand jury minutes of the victim's testimony are turned over to defense counsel, counsel not provide a copy of the minutes of that testimony to the defendant or to any third party. Moreover, the court finds good cause to grant the People's application for a protective order that, once the victim's name and contact information are turned over to defense counsel, counsel may not reveal that victim's name and contact information to the defendant or any third party. This order also means that counsel can only show defendant a redacted copy of the victim's grand jury testimony so that any reference to the victim's name is not revealed in this manner. The court finds that the People have established good cause that disclosing any of this information to the defendant presents a risk of victim harassment or intimidation, a risk to the physical safety of the victim, and the potential for witness tampering, especially given that the defendant's unapprehended accomplice to this alleged robbery is still at liberty.

[2] However, the People have not demonstrated good cause for any type of protective order for grand jury testimony of any police or law enforcement witness. The court agrees with the defendant that a case-specific good cause showing has to be made before a court can order an attorney not to disclose and provide a copy of the grand jury testimony of a law enforcement [*6]witness to the defendant. The statute lists a variety of law enforcement related good cause factors. The court finds that the People have not demonstrated that any of those factors are present. Thus, the application for a protective order for the grand jury testimony of law enforcement witnesses is denied.

The court has considered the potential effect of this ruling on the defendant's right to present a defense at trial. The legislature seems unconcerned that this type of limited restriction on statutory disclosure via a procedure where the People must first demonstrate good cause to limit it to only defense counsel's possession would automatically hinder the preparation of a defense. Under CPL 245.70 (1), if the court imposes "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{**67 Misc 3d at 205} by law to disclose such material or information to the defendant." This type of very limited protective order provides "defense counsel with evidence necessary to prepare for trial." (See People v Artis, 179 AD3d 1440, 1442 [3d Dept, Jan. 31, 2020, Garry, J.].) 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. He will not be prevented from discussing the substance of any grand jury testimony with the defendant.

Having found good cause, it is hereby ordered that defense counsel not provide the defendant or any third party with a physical copy of the grand jury testimony of the victim, or disclose to the defendant or any third party, by any means, the name and the contact information of the victim. Information about the victim's name and contact information is for the exclusive use of defense counsel and members of the Bronx Defenders who are working to prepare their client's defense.