In the Matter of Subpoena Ad Testificandum To Third Party Daily News v. Diaz

• Decision Date: 11 January 2011
• Citation: 920 N.Y.S.2d 865,31 Misc.3d 319,2011 N.Y. Slip Op. 21038
• Parties: In the Matter of Subpoena Ad Testificandum to Third Party DAILY NEWS, L.P. The People of the State of New York Angelo Diaz, Defendant.The People of the State of New Yorkv.Angelo Diaz, Defendant.
• Court: New York Supreme Court

31 Misc.3d 319
920 N.Y.S.2d 865
2011 N.Y. Slip Op. 21038

In the Matter of Subpoena Ad Testificandum to Third Party DAILY NEWS, L.P. The People of the State of New York Angelo Diaz, Defendant.The People of the State of New York
v.
Angelo Diaz, Defendant.

Supreme Court, Kings County, New York.

Jan. 11, 2011.

[920 N.Y.S.2d 866]

Charles J. Hynes, District Attorney, Brooklyn (Lewis Lieberman of counsel), for plaintiff.

[920 N.Y.S.2d 867]

Anne B. Carroll, New York City, for Daily News, L.P. Legal Aid Society, Brooklyn (Laurie Dick of counsel), for defendant.MARK DWYER, J.

Defendant Angelo Diaz stands charged with a number of felonies, including Attempted Murder in the Second Degree, on the theory that he was an accomplice in an attempt to shoot a police officer. The People intend to prove at trial that defendant shouted, in so many words, “shoot the cop” as his co-defendant, Angel Rivera, struggled with an officer for control of a pistol. However, the Daily News published an article just after the crime stating that, “according to authorities,” the co-defendant's mother had shouted “shoot the cop.”

Defendant has served a subpoena on the Daily News in an effort to determine whether the source of the story's report about the co-defendant's mother was one of the two officers present at the time of the crime. Those officers are expected to testify about the “shoot the cop” statement. If they attribute the statement to defendant, and if one of the officers was the source for the Daily News article, defendant would seek to impeach the witness with his prior statement. If necessary, defendant would call a Daily News witness to attest that the officer had attributed the “shoot the cop” statement to someone other than defendant.

The Daily News has moved to quash the subpoena on authority of New York's Press Shield Law (Civil Rights Law Section 79–h) and related constitutional doctrines. For the reasons that follow, the court will deny the motion of the Daily News and grant limited, but substantial, relief to defendant.

I

The People's theory of the case is that two police officers discovered defendant, Angel Rivera, and a third man drinking in a public area inside 2220 West 11th Street in Brooklyn, and sought to issue each of them a summons. Rivera resisted and displayed a weapon. He then struggled with one officer for control of that weapon. The second officer handcuffed defendant and the third man to a garbage chute, but when the magazine of Rivera's weapon was kicked to defendant, defendant was able to drop it into the chute. According to the People, defendant then shouted “shoot the cop” as Rivera continued to struggle with the first officer for control of the gun.

Defendant is charged as an accomplice for encouraging Rivera's attack on the first police officer. Central to the case against defendant is the assertion that he shouted “shoot the cop.” See Penal Law Section 20.00. The Daily News article attributing that statement to Rivera's mother therefore touches on a subject very obviously material to the charges against defendant.

Defendant quite understandably wants to know the identity of the “authorities” who supposedly reported that the co-defendant's mother shouted “shoot the cop.” He has submitted a subpoena to the Daily News seeking that information. The Daily News, also quite understandably, seeks to quash the subpoena on the ground that the source is a confidential informant. The Daily News argues that the identity of the informant is protected from disclosure by New York's Press Shield Law, Civil Rights Law Section 79–h, and by both the state constitution and the federal constitution.

Defendant does not dispute that the source of the Daily News article is a “confidential” source. But he asserts that his Sixth Amendment right to confront prosecution witnesses trumps the Shield Law

[920 N.Y.S.2d 868]

and entitles him to know the source of the Daily News report. Notably, defendant has limited his request. He seeks to learn the identity of the source of the Daily News report only if it is one of the two officers who were present at the time of the alleged crime.¹

II

The Daily News asserts that, under state law, the identity of a confidential source is absolutely protected from disclosure. The Daily News is correct. The Court of Appeals has held that the identity of a confidential source is protected from disclosure by statute. Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304 (1984).

The Daily News also suggests that the information is constitutionally protected. That view is subject to criticism. The definitive statement by the United States Supreme Court in the area came in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The five justices in the majority agreed that a press representative was not entitled to resist a Grand Jury subpoena on a First Amendment theory. Justice Powell, one of the five, added a concurring opinion suggesting that extreme instances of harassment of the press could yield a different result. See id. at 656, 92 S.Ct. 2646. But no general First Amendment “press privilege” was established.

A number of subsequent decisions of the federal Circuit Courts of Appeals misinterpreted Branzburg. Prominent among them was United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983), which turned the Branzburg holding on its head. Burke concluded, based on an apparent conflation of the Branzburg concurring opinion and the dissenters'...