Andrews v. Andreoli

• Decision Date: 18 November 1977
• Citation: 92 Misc.2d 410,400 N.Y.S.2d 442
• Parties: , 3 Media L. Rep. 1767 Petition of Robert ANDREWS, Petitioner, v. Peter D. ANDREOLI, Extraordinary Special Prosecutor, Respondent.
• Court: New York Supreme Court

Page 442

400 N.Y.S.2d 442

92 Misc.2d 410, 3 Media L. Rep. 1767

Petition of Robert ANDREWS, Petitioner, v. Peter D. ANDREOLI, Extraordinary Special Prosecutor, Respondent.

Supreme Court, Onondaga County.

Nov. 18, 1977.

Bond, Schoeneck & King, Syracuse, for petitioner; Charles T. Major, Jr., Syracuse, of counsel.

Peter D. Andreoli, Sp. Deputy Atty. Gen., pro se; Norman S. Hatt, Syracuse, of counsel.

MEMORANDUM DECISION

LYMAN H. SMITH, Justice.

Petitioner, a journalist employed by the Syracuse Post Standard, moves to quash a subpoena ad testificandum served on him by the Special Prosecutor of Onondaga County directing him to appear and testify before the Onondaga County Extraordinary Special Grand Jury.

Concededly, the testimony sought by the subpoena will pertain to conversations and interviews the petitioner had with two individuals in March, 1976, concerning certain contracts and payments made thereunder to two contractors for repair of the Salina Town Hall during the spring of 1976 a subject currently under investigation by the Special Grand Jury.

The solicited testimony is clearly relevant to the on-going investigation of the Special Grand Jury and falls within the ambit of Executive Orders Nos. 42 and 43 (November 24, 1976). There is no dispute that the conversations and interviews with the aforementioned individuals were predicate sources for prospective news stories and comments to be published in the Post Standard which, however, never went into print.

Petitioner claims protection under the First Amendment (U.S. Const.) and its counter part, Article I, § 8 (N.Y. Const.). Likewise, petitioner seeks the protection of New York's "Shield Law", so-called (Civil Rights Law, § 79-h, L., 1970, c. 615).

While recognizing the reportorial immunity from judicial contempt powers under the Shield Law (Civil Rights Law, § 79-h), the Special Prosecutor contends that the elements of confidentiality necessary to raise the shield of the statute is lacking in the instant case and that the motion to quash must therefore be denied. Commendably, the Special Prosecutor has acknowledged that conversations between the petitioner-reporter and a third individual concerning the affairs of the Town of Salina were, in fact and in law, confidential and, by virtue of 79-h, are beyond the reach of his subpoena ad testificandum.

Because of potential calumny and harm that might arise in open court, (1) from revelation of the aforementioned conversations and interviews, (2) from specific identification of otherwise statutorily privileged news sources and (3) from possible publication of unfounded accusations against innocent persons, the court has conducted an "in camera " hearing, in which petitioner, his attorney, and two attorneys from the Special Prosecutor's office have testified, outside of each other's presence, concerning the circumstances surrounding the subject conversations and interviews. They have also testified concerning two meetings of the petitioner with the Special Prosecutor and others at the Prosecutor's office on October 7 and 13, 1977, when the investigation of the affairs of the Town of Salina was discussed. ¹

The "in camera " testimony of petitioner has established that in March, 1976, the petitioner-reporter was approached by an individual, herein designated as "C", who proffered information regarding purported official improprieties in the affairs of the Town of Salina on express condition that his ("C's") identity be kept confidential. Further, "C" provided petitioner with copies of certain public records of the Town of Salina which the reporter has since returned. These conversations between petitioner and "C" are not solicited under the instant subpoena. As above-indicated, the Special Prosecutor concedes that the reporter's conversations and interviews with "C" are privileged under the statute. (Civil Rights Law, § 79-h.)

"C", however, persuaded another individual, herein designated "A", to meet one evening in the kitchen of "C's" home with "C" and petitioner present to discuss the alleged improprieties. Petitioner had previously and independently sought such information from "A" and had been refused until "C's" intercession with "A" succeeded in bringing about the aforementioned meeting in "C's" home. No mention was made at this latter meeting regarding the preservation of "A's" identity, nor of maintaining the confidentiality of the substance of their discussion. Petitioner frankly states that none was offered and none was requested.

Both sides agree that the other conversation, or interview, solicited by the subject subpoena, was held between petitioner and an individual identified only as "B". Petitioner's "in camera " testimony suggests that "B" was a close friend of petitioner and that the specific conversation or interview took place in the Salina Town Hall on an occasion when both petitioner and "B" were present and preoccupied with other business. According to petitioner his conversation with "B" lasted for only a brief time; that other persons were in the area, but none within earshot. Petitioner testified that it was fair to state on this occasion that "B" could probably have assumed that he, petitioner, had previously talked with "A" and "C". Petitioner also stated that, while "B" did not volunteer information, or speak "freely", he ("B"), nevertheless, answered petitioner's inquiries directly and without hesitation. Again, in this instance, petitioner confirmed that no express request was made by petitioner for preservation of "B's" identity, nor for maintenance of confidentiality of the substance of their conversation. As was the case with "A", petitioner also confirmed that he did not offer such protection to "B".

The attorneys for the Special Prosecutor's office revealed to the court, "in camera ", that the petitioner, in their meeting with him on October 7, 1977, acknowledged to them the identities of "A", "B" and "C", insisting upon the confidentiality of his conversations with "C", but not rejecting the contention that his conversations with "A" and "B" were non-confidential They also testified that "A" has since voluntarily met with them and discussed his conversations in the spring of 1976 with petitioner. ²

It is within the purview of the foregoing circumstances that petitioner moves to quash the subject subpoena.

Petitioner's motion to quash the subpoena is bottomed on the following contentions: (1) That the reporter's privilege is total and absolute, having its genesis in the freedom of the press, guaranteed by the First Amendment (U.S. Const.), to gather and disseminate news and which right may only be effectively protected by guaranty of the anonymity of news sources. (2) That the statutorial privilege provided by New York's Shield Law (Civil Rights Law § 79-h) is well-defined and is solely owned by the reporter. (3) That, in any event in the instant case, the testimony sought from the petitioner will be cumulative and is solicited solely for the purpose of bolstering the credibility of other witnesses who have previously testified, or may subsequently testify, before the Special Grand Jury.

These contentions will be considered seriatim.

Constitutional Protection

Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 is dispositive of petitioner's first contention. See, Matter of Wolf v. People, 69 Misc.2d 256, 329 N.Y.S.2d 291, aff'd sub nom., People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 299; People v. Marahan, 81 Misc.2d 637, 368 N.Y.S.2d 685 and Matter of Cepeda, D.C., 233 F.Supp. 465. The United States Supreme Court in Branzburg, carefully considered, and rejected, the proposition that the First Amendment creates an absolute guaranty of anonymity of news sources. "(T)he great weight of authority is that newsmen are not exempt from the normal duty of appearing before a Grand Jury and answering questions relevant to a criminal investigation" (Branzburg v. Hayes, supra p. 685, 92 S.Ct. p. 2658).

In passing, it should be noted that Branzburg does not hold that newsmen subpoenaed to testify before a Grand Jury are without constitutional rights with respect to the gathering and dissemination of news or in safeguarding their sources, but rather, always have access to the courts to quash subpoenas and for appropriate protective orders to guard, on the one hand, the right to gather and disseminate news and, on the other hand, to maintain confidential in certain circumstances the identity of their news sources, including the substance of the gathered news. ³

Absent a showing in the instant case, and there is none, that the instant Special Grand Jury investigation has been empanelled or conducted other than in good faith, or that the subpoena constitutes impermissible harassment of the petitioner-newsman for purposes other than licit law enforcement, petitioner's claim of Federal constitutional privilege must fail. By a parity of reasoning, petitioner's conclusory claim of constitutional protection under Article One, Section 8 of New York's Constitution must also fail. (See, People v. Wolf, supra; Branzburg v. Hayes, supra.)

The Shield Law

Petitioner's second contention is to the effect that the information and its sources have been imparted to him in a "confidential investigation", have not been published, and must therefore, be privileged under the Shield Law.

Section 79-h of the New York Civil Rights Law reads in pertinent part:

"(a) Definitions. As used in this section, the following definitions shall apply:

(1) 'Newspaper' shall mean a paper that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at United States post-office as second class matter . . .

(6) 'Professional journalist' shall mean one who, for gain...