THE PEOPLE OF THE STATE OF NEW YORK v. LUCIANO FRATTOLIN (2026)

DECISION AND ORDER ON MOTION

Michael P. Langey, District Attorney, Elizabethtown (Kevin P. Mallery of counsel), for plaintiff.Gregory V. Canale, Public Defender, Lake George (Brian D. Pilatzke of counsel), for defendant.Application by defendant, pursuant to CPL 245.70(6), for expedited review of an order of the County Court of Essex County (Tatiana N. Coffinger, J.), dated July 10, 2026, which granted the People's application for a protective order.Defendant was charged by indictment with murder in the second degree and concealment of a human corpse in connection with the death of his daughter.  On July 1, 2026, the People submitted an ex parte application to County Court seeking a protective order with regard to the disciplinary records of law enforcement witnesses for the Federal Bureau of Investigation (see CPL 245.70[1] ).  On July 10, 2026, without conducting a hearing, County Court issued a protective order directing that disclosure of the subject records be limited to defense counsel only and prohibiting defense counsel from disseminating or sharing such records or the information contained therein with defendant or his associates.  Defense counsel was served with a copy of the protective order that same day, and defendant now seeks expedited review of that order pursuant to CPL 245.70(6).CPL 245.70(3) provides that, “[u]pon request for a protective order, unless the defendant voluntarily consents to the people's request for a protective order, the court shall conduct an appropriate hearing within three business days to determine whether good cause has been shown.”  Here, it is undisputed that defense counsel did not consent to the People's proposed protective order concerning the subject records.  Thus, a hearing was mated,

the failure to conduct one requires that the protective order be vacated

the matter remitted for that purpose (see People v. Murphy, 238 AD3d 1349, 1350 [3d Dept 2025] ).  Given that further proceedings will be conducted upon remittal, it must be reiterated that while, under certain circumstances

in an appropriate case, a trial court may conduct ex parte proceedings

accept in camera submissions in connection with an application for a protective order (see CPL 245.70[1], [3] ), “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,

scope, of the protective order” (People v. Escobales, 204 AD3d 1157, 1159 [3d Dept 2022] [internal quotation marks

citation omitted];  accord People v. Murphy, 238 AD3d at 1350–1351).

Upon the papers filed in support of the application, the papers filed in opposition thereto,

the documents submitted by the People for in camera review, it is

ORDERED that, upon expedited review pursuant to CPL 245.70(6), the application to vacate the protective order is granted, the order of the County Court of Essex County (Tatiana N. Coffinger, J.), dated July 10, 2026, is vacated

the matter is remitted to said court for further proceedings not inconsistent with this decision

order. It is further

ORDERED that the documents submitted by the People for in camera review in connection with this application are deemed to be filed under seal,

shall continue to be sealed, until further order of County Court or this Court.

ENTER:

Hon. Mark L. Powers

Associate Justice