Oliver v. Postel

• Citation: 327 N.Y.S.2d 444,37 A.D.2d 498
• Parties: Application of Richard OLIVER et al., Petitioners, v. Hon. George POSTEL, individually, and as a Justice of the Supreme Court of the State of New York, Respondent.
• Decision Date: 01 December 1971
• Court: New York Supreme Court Appellate Division

Page 444

327 N.Y.S.2d 444

37 A.D.2d 498

Application of Richard OLIVER et al., Petitioners, v. Hon. George POSTEL, individually, and as a Justice of the Supreme Court of the State of New York, Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 1, 1971.

Jacob D. Fuchsberg, New York City, of counsel (Murray L. Lewis and Leo Pfeffer, New York City, with him on the brief, Fuchsberg & Fuchsberg, New York City, attys.), for petitioners.

Robert S. Hammer, New York City, of counsel (Samuel A. Hirshowitz, New York City, with him on the brief, Louis J. Lefkowitz, Atty. Gen.), for respondent.

Henry J. Boitel, New York City, of counsel (Maurice Edelbaum, New York City, atty.), for Carmine J. Persico, Jr., amicus curiae.

The New York Times Co., Inc., National Broadcasting Co., Inc., Columbia Broadcasting System, Inc., The New York Post Co., The Radio-Television News Directors Assn., New York News, Inc., Newspaper Reporters Assn. of New York, Inc., New York Civil Liberties Union, Sam Polur, New York City, amici curiae.

Before MARKEWICH, J.P., and KUPFERMAN, MURPHY, STEUER and TILZER, JJ.

KUPFERMAN, Justice.

This is a petition in an Article 78 Proceeding by five newspapermen to compel 'Respondent to open his court to the public and press'.

Leave has been given for briefs amici curiae by various newspaper and broadcasting organizations and other interested parties. A brief has also been filed on behalf of Carmine J. Persico, Jr., the defendant in a criminal trial which prompts this proceeding.

Judge George Postel, an experienced trial judge, was presiding at the trial of defendant Persico. During the first day of the presentation of the evidence, in his discretion as a trial judge, he told the newspapermen covering the trial that he thought mention of matters in the newspaper coverage of the case that did not transpire at the trial itself, might be prejudicial to the defendant. Counsel for the defendant had called his attention to, among other things, newspaper items concerning the defendant's alleged associations.

His suggestion was treated as a new story with editorial comment, and, thus, added emphasis was given to the areas that concerned him with respect to the effect on the jury in the trial before him.

The next day, the defendant moved to exclude the public and the press from further trial proceedings and that the transcript of the trial be sealed from access to anyone other than counsel and the Court until the case had been finally determined by the jury, and the motion was granted. DP In the trial judge's discretion, this was necessary to protect the defendant's right to a fair trial, so that there would be no basis, in the event of conviction, for reversal. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Whether this action was an abuse of discretion can be tested on appeal at the appropriate time.

In the case of Matter of United Press Assns. v. Valente, 308 N.Y. 71, 76, 123 N.E.2d 777 (1954) involving the order made by a trial judge 'excluding the general public and the press from the courtroom', the court of Appeals did not decide the matter until after their determination with respect to the rights of the defendant. It was first held that the defendant had been deprived of his right to a public trial, People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769, and his conviction reversed.

In any event, the question is foreclosed by the determination in the United Press case, Supra, where the Court of Appeals, speaking through Fuld, J. (now Chief Judge Fuld) decided that the members of the public at large, including the press, possessed no enforceable right or privilege of their own to insist that trials be open to the public.

Judge Fuld stated:

'Actually, petitioners are seeking to convert what is essentially the right of the particular accused into a privilege for every citizen, a privilege which the latter may invoke independently of, and even in hostility to, the rights of the accused. A moment's reflection is enough, we suggest, to demonstrate that that cannot be, for it would deprive an accused of all power to waive His right to a public trial and thereby prevent him from taking a course which he may believe best for his own interests.' At page 81, 123 N.E.2d at page 781.

In the pending matter, the defendant Persico asked for the exclusion, unlike the situation in the Jelke case, making this an a Fortiori situation.

In view of the dissent, perhaps some further thoughts should be expressed.

If a person is on trial in a criminal matter, there is always a delicate balance between the rights of society and the rights of the defendant. Any nuance can bring weight on the scales of justice. A conscientious prosecutor can prepare a thorough case on behalf of the People and find that a deserved conviction must be reversed because of extraneous circumstances which may have affected the jury determination.

The judge must be alert to avoid the opportunity for error that could lead to a new trial at public expense, with new tribulations for the court, juries, witnesses, etc. See e.g., People v. Kirkup, 13 A.D.2d 987, 216 N.Y.S.2d 749 (2d Dep't 1961). These are not 'instant replay' situations. At the same time, the defendant must not be prejudiced by being forced to an appeal and a further trial if the jury is unduly impressed by extrinsic material. When a defendant specifically raises an issue of prejudice, it rests in the sound discretion of the trial judge to protect his rights and that of the public.

As former Chief Justice Earl Warren put it, these are 'restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.' Miranda v. Arizona, 384 U.S. 436, 439, 86 S.Ct. 1602, 1609, 16 L.Ed.2d 694.

The law limits coverage of court proceedings in other situations, e.g., matrimonial matters, Domestic relations Law § 235 (formerly RCP rule 278), Danziger v. Hearst, 304 N.Y. 244, 107 N.E.2d 62. Broadcast journalism is not permitted, see § 20.5 of the Codes, Rules and Regulations of the Judicial Conference of the State of New York. ¹

It has been blithely suggested that one way to substitute for the action of the trial judge here, is to sequester the jury. Perhaps the infringement on personal liberty thus involved has not been considered of moment to those that urge this view, but it means that members of a jury (plus alternates, CPL § 270.30) who are performing a public service, many times against their will but in the exercise of citizenship (Judiciary Law § 596), will be taken from family and friends for possibly long periods of time at considerable cost and inconvenience. This is a form of cruel and unusual punishment (for which there is no crime) and should be used sparingly. Getting people to serve on juries is not an easy task. See Journal of the American Judicature Society, Vol. 55 No. 3, October 1971, and especially the article by Benjamin S. Mackoff entitled 'Jury Selection for the Seventies' at page 104 on 'providing incentives for jury service', in which he states 'It is the duty of those responsible for the jury system to make that experience an edifying one.'

The Pentagon Papers matter, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) has also been cited as precedent. It has little, if any, relevance, as we are here dealing with the right of a defendant during his trial to be free of prejudicial references, which may in some way be brought to the jury's attention. We are not dealing with the right of a government to maintain secrecy for by-gone documents allegedly of a confidential nature. The analogy could be apt if, After the jury's verdict, the transcript were to remain sealed. Cf. New York Post Corp. v. Leibowitz, N.Y.2d 677, 163 N.Y.S.2d 409, 143 N.E.2d 256 (1957).

The petition should be dismissed without costs.

MARKEWICH, J.P., and STEUER, J., concur.

TILZER, J., concurs in a concurring opinion.

MURPHY, J., dissents in a dissenting opinion.

TILZER, Justice (concurring):

While I am in agreement with much of the views expressed in the dissenting opinion by Murphy, J., nevertheless, I feel that I am compelled to vote to dismiss the petition under constraint of Matter of United Press Assns. v. Valente, 308 N.Y. 71, 123 N.E.2d 777. I am firmly convinced that although the defendant's rights are of great importance, the public also has rights which are to be considered and protected. The right of the public to know is one of utmost importance, not only to the defendant but serves to promote effectively the orderly administration of justice. The provisions for a public trial should not be defeated solely at the election of the defendant. A balancing of interest should be accorded and that is not accomplished when the public and press are completely barred from the courtroom.

In view of recent changes and progress in the law, this subject matter should be reviewed anew by the Court of Appeals.

MURPHY, Justice (dissenting):

I dissent and would grant the petition and annul the order of the trial court, dated November 15, 1971, which directed that the press and public be excluded from the trial of Carmine J. Persico.

This is an Article 78 Proceeding in the nature of prohibition. The facts giving rise to this proceeding came about during the trial of an indictment which was returned against one Carmine J. Persico charging him with the crime of extortion and conspiracy.

The indictment came to trial before Mr. Justice George Postel and a jury in Part 32 of the Supreme Court, New York County. During the early course of the trial the local press printed articles pertaining to the trial and also matter not testified to at the trial but rather information found through their own research and from their own files.

Counsel for the defendant moved for a mistrial based in part upon the stories...