People of the State New York, v. Michael Ortiz, Defendant. (2026)

The following papers were read in connection with this motion:

1. Notice of Motion and Affirmation;

2. People's Response to Defendant's Motion.

Defendant is indicted for three counts of Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39(1); three counts of Criminal Possession of a Controlled Substance in the Third Degree, PL 220.16(1); and three counts of Criminal Possession of a Controlled Substance in the Seventh Degree, PL 220.03 for three different incidents on October 14, 2024, November 9, 2024, and December 8, 2024. The People turned over discovery and filed a Certificate of Compliance (COC) and Statement of Readiness (SOR) but withheld certain items pursuant to CPL 245.20(1)(d), thereby also alerting defendant as to the items they withheld.

Defendant moves for an order from this Court directing the People to turn over certain items of discovery they have yet to disclose. Defendant claims that the only discovery items that can be withheld pursuant to CPL 245.20(1)(d) are those that relate to the name and work affiliation of undercover personnel, and that the People improperly withheld those items without authorization under CPL 245.20(1)(d). Defendant argues that there is no legitimate basis for the People's withholding of these documents and that they should have demonstrated good cause to withhold the documents by moving for a protective order instead of simply withholding them. Defendant further moves to strike the People's COC and SOR due to them withholding certain items of discovery.

The People oppose defendant's motion in that they claim they properly withheld certain items of discovery — videos of the drug sales; grand jury testimony; text messages between the undercover officer and the defendant; a photograph of the undercover officer; photographs of the buy money used for the controlled buys; and the disciplinary file of the undercover officer — pursuant to CPL 245.20(1)(d). They assert that each of those withheld items contain information relating to undercover personnel, both under the broad language of the statute and existing case law, to protect the undercover officer's safety and any active investigations. Additionally, they outlined that they attempted to stipulate to an "attorney's eyes only" viewing of the withheld material, but defense counsel did not want to make such an agreement. The People further argue that because they properly withheld the items, including fulfilling their requirement to give defense counsel notice of the items they withheld, their COC and SOR should be upheld, or, in the alternative, ask the Court to allow them time to turn over the items or file for a protective order.

CPL 245.20 outlines the parameters of automatic discovery. Regarding the names and work affiliation of law enforcement personnel, 245.20(1)(d) states:

the prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test the following material and information in the possession, custody or control of the prosecution or persons under the prosecution's direction or control . . . the name and work affiliation of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Information under this subdivision relating to undercover personnel may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.70 of this article; but the prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown."

The practice commentary to CPL 245 expands on that statutory definition stating:

Examples of a statutory grant of a protective mandate include information related to a confidential informant [CPL 245.20(1)(c)] or an undercover officer [CPL 245.20(1)(d)]. In those instances, the statute permits the information relating to the informant or undercover officer to be "withheld, and redacted" from discovery materials, "without need for a motion" for a court-issued protective order. The withheld or redacted information would normally involve information that would reveal the informant's or undercover's identity. The prosecution is, however, required to notify the defendant in writing that "such information" has not been disclosed.

Although the purpose of CPL 245.20 is to ensure defendants receive complete discovery in a timely manner, it has also been held that purpose of CPL 245.20 "must yield to certain competing concerns, one of which is the need to protect the safety of undercover law enforcement officers and the integrity of their investigations." People v. Oliveri, 74 Misc 3d 945, 946 (NY Sup. Ct. 2022). The Court in Oliveri went on to discuss that "a broad interpretation of this section is necessary to further those ends, and thus that limiting the information covered by this section to an officer's name and work affiliation is not adequate to do so." Id.

This Court has reviewed the discovery items in this case that the People have withheld and finds that the People were entitled to withhold some of those items under 245.20(1)(d) without the need for a motion for a protective order. The videos of the drug sales; grand jury testimony; text messages between the undercover officer and the defendant; photograph of the undercover officer; and the disciplinary file of the undercover officer that the People withheld in this case have the high likelihood of revealing the undercover detective's identity, thereby causing potential safety concerns for that detective or potentially affecting the integrity of their investigations. Oliveri, 74 Misc 3d 945; People v. R.W., 194 N.Y.S.3d 463 (NY Sup. Ct. 2023). Therefore, those items were properly withheld by the People under 245.20(1)(d).

However, as to the pictures of the buy money, this Court finds no reason why those items should be withheld under 245.20(1)(d). There is no indication that the pictures would identify the undercover officer nor any way that those pictures would affect the integrity of any open investigations. Therefore, those pictures were not properly withheld under 245.20(1)(d) and the People are directed to turn those items over immediately.

Further, this Court finds the People's COC and SOR are valid and thereby defendant's motion to strike the People's COC and SOR is denied. Even though the People withheld certain discovery items pursuant to CPL 245.20(1)(d) when they filed their COC and SOR, they properly alerted the defendant in writing as to the items they withheld. CPL 245.20(1)(d). Additionally, notwithstanding that some of the originally withheld items are required to be turned over, the People withheld those items and filed their COC and SOR in good faith and with due diligence. See People v. Bay, 41 NY3d 200 (2023).

The People are reminded of their continuing obligations under CPL Article 245.

Additionally, defendant may make such further motions and applications that could not, with due diligence, have been raised in any of his original motion papers and which are not inconsistent with CPL Article 255.

This determination shall constitute the decision and Order of this Court.

It is SO ORDERED,

ENTER

HON. ROBERT G. BOGLE

Acting Supreme Court Justice

Dated: September 11, 2026

Mineola, New York

Robert G. Bogle, J.