CPL 245 - New York Criminal Order to Show Cause

2020 is bringing enormous changes, locally and nationally, but the sea change that occurred in criminal law is truly unprecedented insofar as the prosecution shall not be deemed ready for trial for purposes of Criminal Procedure Law (CPL) § 30.30 until it has filed a proper certificate absent an individualized finding of exceptional circumstances. Local prosecutors who routinely answered “ready for trial” at arraignment no longer do so because the need to comply with providing the accused discovery made prosecutors who were instantaneously ready for trial previously suddenly constrained to observe the statutory speedy trial rights of the accused.

CPL § 245.20(2) requires that the prosecutor take affirmative steps to cause records to be made available for discovery where such records exist but are not within their control. Within CPL § 245.20 is a list of records/information that should be provided without a written demand by defense counsel. CPL § 245.55 states that all records in the possession of New York State or local police agencies shall be deemed to be within the possession of the prosecutor. C.P.L. “§245.70 [however,] permits either party to move the trial court for a protective order limiting, upon a showing of good cause, the information to be turned over, by either denying, restricting, conditioning, or deferring its disclosure.”

If there is a protective order, the trial court should make its best efforts to detail the records and information that is subject to that order. Afterwards, “[e]ither party can obtain expedited review by a single appellate justice of a ruling that grants or denies a protective order relating to the name, contact information or statements of a person.”[ii] An enormous amount of case law will likely develop out of such disputes and, of course, “unless the defense consents to the People’s request for a protective order, the trial court must hold a prompt hearing within three business days and render a decision expeditiously.”[iii] How defense counsel could make such a waiver without placing the reasons for such waiver on the record, in itself, may become an issue in the future.

The Order to Show Cause

Throughout Long Island, the CPL Article 245 Order to Show Cause (OSC) application should be made "to the [Second Department] Court within two days of the ruling sought to be reviewed..."[iv] and “[t]he OSC [must be] supported by a sworn affirmation which contains a statement, represented to be made in good faith that (a) the ruling affects substantial interests and (b) diligent efforts to reach an accommodation of the underlying discovery dispute with opposing counsel failed or that no accommodation was feasible, which statement is supported by an argument in support of these assertions...” The necessity of detailing diligent efforts to resolve a discovery dispute is very similar to meet and confer requirements mandated throughout the United States District Courts.

The Second Department requires that all orders to show cause (and their supporting papers) seeking review pursuant to CPL § 245.70(6) and 22 NYCRR § 1250.11(ii) shall either be presented in person at the Clerk’s Office at 45 Monroe Place, Brooklyn, New York, or e-mailed in pdf format to the Clerk’s office at AD2-CPL245.70.6applications@nycourts.gov.

As for oral argument and service, “reply papers are not permitted, and no provision for oral argument will be made in the OSC[v].......Proof of service of the application shall be filed on or before 10:00 a.m. on the day prior to the return date. Failure to timely file proof of service shall result in the dismissal of the application...”

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