The Second Department, in an expedited review of Supreme Court’s granting a protective order in a murder case, determined Supreme Court did not abuse its discretion, in part because defense counsel was notified of the ex parte proceeding:
On January 15, 2020, the Supreme Court convened in an open session in the presence of the prosecutor, defense counsel, and the defendant. After ascertaining that defense counsel would not waive a hearing on the protective order, the court ordered the courtroom sealed. The defendant was removed from the courtroom, and defense counsel stepped out of the courtroom. Defense counsel did not voice an objection to the court’s conduct of an ex parte proceeding. Nor did defense counsel seek to offer any arguments concerning any of the factors relevant to the determination as to whether, and to what extent, a protective order should be issued. The court then proceeded to conduct an ex parte proceeding regarding the People’s application. Thereafter, the court resumed with a continued open session attended by both defense counsel and the defendant. After the court informed defense counsel that it had granted the People’s application, the parties and the court proceeded to discuss other matters related to the case. During these proceedings, defense counsel inquired as to whether there was description of the shooting by a witness. The court responded by stating that defense counsel had been provided with a videotape that “pretty much shows you how the shooting occurred.” … The defendant now seeks expedited review of the court’s ruling pursuant to CPL 245.70(6).
… [T]he record reflects that the court considered the possibility of allowing defense counsel access to the information on the condition that it not be shared with the defendant personally; the court raised this possibility sua sponte.
It would have been better in my view to allow defense counsel to see the portions of the People’s written application that contained legal argument or other matter that would not reveal the information sought to be covered by the protective order, pending the court’s determination as to whether the sensitive portions of the People’s application should be sealed. Further, it would have been better in my view, even assuming that portions of the People’s written and oral presentations should be sealed, to permit defense counsel to participate in portions of the protective order proceeding where the substance of the sealed information is not discussed. In my view, defense counsel should be excluded from participation in the protective order review process only to the extent necessary to preserve the confidentiality of sensitive information pending the court’s determination as to the issuance, and scope, of the protective order. People v Nash, 2020 NY Slip Op 00520, First Dept 1-27-20