MATTER OF NYP HOLDINGS

• Decision Date: 30 June 2003
• Citation: 196 Misc.2d 708,766 N.Y.S.2d 477
• Parties: In the Matter of the Application of NYP HOLDINGS, INC., et al., Petitioners, to Unseal Evidence Presented to the Grand Jury in Kings County Indictment Nos. 3515/2003, 3516/2003, 3517/2003, 3519/2003 and 3520/2003.
• Court: New York Supreme Court

196 Misc.2d 708
766 N.Y.S.2d 477

In the Matter of the Application of NYP HOLDINGS, INC., et al., Petitioners, to Unseal Evidence Presented to the Grand Jury in Kings County Indictment Nos. 3515/2003, 3516/2003, 3517/2003, 3519/2003 and 3520/2003.

June 30, 2003.

Hogan & Hartson, LLP, New York City (Katherine M. Bolger of counsel), for petitioners.

Charles J. Hynes, District Attorney (Jeffrey Ferguson of counsel), for People of the State of New York.

Ronald Fischetti, New York City, and White & White, New York City (Diarmuid White of counsel), for Gerald Garson.

Oliver Storch, New York City, for Louis Salerno.

Michael J. Kaper, Williston Park, for Avraham Levi.

Ephraim Savitt, New York City, for Esther Weitzner and Ezra Zifrani.

[196 Misc.2d 709]

OPINION OF THE COURT

STEVEN W. FISHER, J.

This is a joint application by NYP Holdings, Inc., the New York Times Company, Daily News LP, Newsday Inc., the National Broadcasting Company and the Associated Press (hereinafter the movants) for an order unsealing certain evidence presented to the grand jury that returned Kings County Indictment Nos. 3515/2003, 3516/2003, 3517/2003, 3519/2003, and 3520/2003.^[1] The indictments charge a number of individuals with crimes relating to the handling of matrimonial cases in the Supreme Court of Kings County. Among those named are a court clerk, a court officer, and a justice of the court.

In the course of the investigation that led to the indictments, electronic monitoring produced approximately 1,009 audiotapes, 64 videotapes, and 40 compact disks.^[2] With the permission of the court, those recordings are now in the process of being reproduced in order to allow copies to be provided to the defendants, together with previously provided copies of (1) warrants authorizing electronic surveillance, (2) orders renewing, extending, and amending those warrants, and (3) applications, supporting documents, and progress reports, submitted in connection with the issuance of the warrants and orders.^[3]

The movants now seek access to the videotapes and audiotapes of the accused justice that were presented to the grand jury that indicted him. They contend that CPL 190.25 (4) (a) confers upon the court discretion to order the disclosure of grand jury evidence to the press and public "where the public interest in the disclosure of [that evidence] outweighs the public interest in keeping [the evidence] secret" (Bolger affidavit at 3).^[4] Maintaining that the circumstances at bar should persuade the court to exercise that discretion in favor of disclosure, the movants argue:

[196 Misc.2d 710]

"If ever there were a case where the public interest in disclosure outweighs the public interest in secrecy, this is that case. [The accused Justice] was an elected official and a sitting New York State court judge at the time of his alleged wrongdoing. He is charged with accepting gifts to influence the outcome of matrimonial disputes and disputes about the custody of children—and he is charged with performing these illegal acts while in a New York State courthouse. There simply can be no subject of higher importance to the public than the alleged corruption of an elected official. The videotapes and audiotapes that the News Organizations seek contain information that strikes at the very heart of our country's notion of self-government" (Bolger affidavit at 3-4).

The defendants in the criminal actions oppose the application.^[5] They argue that the movants have no First Amendment or common-law right to access to the tapes and have failed to demonstrate a compelling and particularized need for them. They further contend that unsealing tapes produced through electronic surveillance would present a heightened and unjustified risk to privacy rights protected under both state and federal law.

There is little...