Ladone v. Lerner

• Decision Date: 07 December 1987
• Citation: 521 N.Y.S.2d 760,135 A.D.2d 535
• Parties: , 14 Media L. Rep. 2110 In the Matter of Jason LADONE, et al., Petitioners, v. Alfred LERNER, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 760

521 N.Y.S.2d 760

135 A.D.2d 535, 14 Media L. Rep. 2110

In the Matter of Jason LADONE, et al., Petitioners, v. Alfred LERNER, etc., Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1987.

Ronald Rubinstein, Kew Gardens, for petitioner Ladone.

Bryan Levinson, Kew Gardens, for petitioner Lester.

Gabriel B. Leone, Jackson Heights, for petitioner Kern.

Stephen G. Murphy, Glendale, for petitioner Pirone.

Robert Abrams, Atty. Gen., New York City (Frederic L. Lieberman, of counsel), for respondent.

Rogers & Wells, New York City (Richard N. Winfield, of counsel), for media intervenors Associated Press and Newsday Press Pool.

Roberta R. Brackman, New York City, for media intervenors WNBC-TV and the New York Broadcasters' Courtroom Pool.

Squadron, Ellenoff, Plesent & Lehrer, New York City (Slade R. Metcalf, of counsel), for media intervenor News America Publishers Inc.

Charles J. Hynes, Deputy Atty. Gen., New York City (Helman R. Brook, of counsel), Sp. Prosecutor pro se.

Before MOLLEN, P.J., and BROWN, LAWRENCE, WEINSTEIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review an order of the Administrative Judge of the Supreme Court, Queens County (Lerner, J.), dated December 4, 1987, which modified a determination of the Justice presiding over a pending criminal proceeding under Queens County Indictment Number 890/87, and authorized audio-visual coverage of the trial of that proceeding; and motion by various members of the media for leave to intervene.

ORDERED that the motion for leave to intervene is granted; and it is further,

ADJUDGED that the petition is granted, the order of the Administrative Judge is annulled and the determination of the Trial Justice is reinstated, without costs or disbursements.

The instant proceeding has been instituted by the petitioners, who are the defendants in an underlying criminal action, to review an order of the respondent Administrative Judge of the Eleventh Judicial District. The Administrative Judge modified an order of the Justice presiding at the ongoing trial of that criminal action, issued pursuant to Judiciary Law § 218 (added by L.1987, ch. 113) and the rules of the Chief Administrative Judge promulgated pursuant thereto (22 NYCRR part 131), so as to permit audio-visual coverage of the summations of trial counsel and the court's charge to the jury.

At issue is the third in a series of orders issued by the Administrative Judge upon review of orders of the Justice presiding at the criminal action in relation to a media request for access for audio-visual coverage thereof. The Trial Justice had first denied a request for audio-visual access to the trial proceedings made during the defense case. Upon review, the Administrative Judge remitted the matter for further proceedings upon the ground that the Trial Justice had denied the application without consultation with the parties concerned as contemplated by the statute and rules (see, Judiciary Law § 218[3][d]; 22 NYCRR 131.4[c][3] ). The Trial Justice thereupon proceeded to conduct a hearing at the conclusion of which he again denied the media's request for audio-visual access. Upon a second review, the Administrative Judge upheld the Trial Justice's determination denying audio-visual coverage of the testimony of defense witnesses, but noted that no specific request had been made by the media or ruled upon by the Trial Justice as to audio-visual coverage of the summations and charge. Accordingly, the media thereupon made a de novo application to the Trial Justice for audio-visual access to cover the summations, charge and verdict.

After a further hearing at which the media, prosecution and defense counsel were present, the Trial Justice denied the application by decision dated December 4, 1987, citing seven areas of concern raised by defense counsel, which he indicated he shared, and which he summarized as follows:

"1. Although the First Amendment (freedom of the press and the public's right to know) is not an issue here, the Sixth Amendment (right to a fair trial) is an issue here. The media in all its forms (with the exception of cameras) has covered the trial extensively and responsibly. The presence of cameras in the courtroom at this stage of the proceedings cannot add any more, but may affect the rights of the defendants. There must be a sensible accommodation between the First Amendment rights and Sixth Amendment rights.

"2. The timing of the implementation of the cameras is objectionable in the final stages of the proceeding. During the selection of the jury, it was never predicted there was a possibility that there would be audio-visual coverage of this trial. There should have been maximum opportunity to prepare the jury for the introduction of cameras in the courtroom and to assess the reaction of the prospective jurors so that counsel could intelligently exercise their peremptory challenges. It is too late to ask the jury what effect the cameras will have on their deliberations and their ultimate decision--the guilt or innocence of the defendants.

"3. This is an experimental program and it mandates a pre-trial conference. There was no pre-trial conference here, to the...