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People v Reyes, 2020 NY Slip Op 00620 [179 AD3d 1098]

January 29, 2020

Appellate Division, Second Department

[*1]

The People of the State of New York, Plaintiff,

v

Ezequiel Reyes, Defendant. The People of the State of New York, Plaintiff, v Primitivo Robles, Defendant. The People of the State of New York, Plaintiff,

v Diego Cardona-Vasquez, Defendant. The People of the State of New York, Plaintiff, v Alister Simon, Defendant. The People of the State of New York, Plaintiff, v Carlson Small, Defendant. The People of the State of New York, Plaintiff, v Luis Figueroa, Defendant. The People of the State of New York, Plaintiff, v Julio Figueroa, Defendant. The People of the State of New York, Plaintiff, v Rafael Davila, Defendant. The People of the State of New York, Plaintiff, v Rolando Martinez-Flores, Defendant. The People of the State of New York, Plaintiff, v Frank Morales, Defendant. The People of the State of New York, Plaintiff, v Ricky Figueroa, Defendant. (Action No. 1.) The People of the State of New York, Plaintiff, v Ezequiel Reyes, Defendant. The People of the State of New York, Plaintiff, v Primitivo Robles, Defendant. The People of the State of New York, Plaintiff, v Noe Lopez, Defendant. (Action No. 2.) The People of the State of New York, Plaintiff, v Carlson Small, Defendant. The People of the State of New York, Plaintiff, v Jamal Lynch, Defendant. (Action No. 3.) Leventhal, J. Application by the People pursuant to CPL 245.70 (6) to review a ruling of a Justice of the Supreme Court, Kings County, as set forth in a protective order of that court dated January 16, 2020, and, upon review, to modify the ruling. Separate application by the defendant Carlson Small pursuant to CPL 245.70 (6) to review the ruling, and, upon review, to vacate the ruling.

Upon the papers filed in support of the applications and the papers filed in opposition thereto, it is Ordered that the application by the defendant Carlson Small is granted, the ruling and the protective order are vacated, and the matter is remitted to the Supreme Court, Kings County, to afford the defendants an opportunity to make arguments to that court with respect to the People’s application for a protective order; and it is further, Ordered that the application by the People pursuant to CPL 245.70 (6) is denied as academic; and it is further, Ordered that the exhibits annexed to the affirmation of Matthew J. Bennett dated January 21, 2020, submitted in support of the People’s application pursuant to CPL 245.70 (6) are deemed to be filed under seal, and shall continue to be sealed.

I conclude that the Supreme Court should have afforded defense counsel an opportunity to be heard on the People’s application for a protective order ( see People v Bonifacio , 179 AD3d 977 [2d Dept 2020]). Accordingly, the application by the defendant Carlson Small is granted, the Supreme Court’s ruling and protective order are vacated, and the matter is remitted to the Supreme Court, Kings County, to afford the defendants an opportunity to make arguments to that court with respect to the People’s application for a protective order, and for a new determination of that application thereafter.

In light of my determination, the application by the People pursuant to CPL 245.70 (6) is denied as academic..