People v. Bova

• Decision Date: 19 February 1983
• Citation: 460 N.Y.S.2d 230,118 Misc.2d 14
• Parties: , 9 Media L. Rep. 1329 PEOPLE of the State of New York v. Gino BOVA.
• Court: New York Supreme Court

Page 230

460 N.Y.S.2d 230

118 Misc.2d 14, 9 Media L. Rep. 1329

PEOPLE of the State of New York v. Gino BOVA.

Supreme Court, Criminal Term Kings County, Part 14.

Feb. 19, 1983.

Elizabeth Holtzman, Dist. Atty., Kings County by Andrew Plump, Asst. Dist. Atty., for the People.

Callan, Regenstreich, & Kosher by Paul F. Callan, New York City, for defendant, Gino Bova.

DeBovoise & Plimpton by James C. Goodale, Mary Jo White, Gary W. Kubek, and Mitchel A. Karlan, Katherine P. Darrow, Solomon B. Watson IV, New York City, for The New York Times and Sheila Rule.

MEMORANDUM

SYBIL HART KOOPER, Justice.

The New York Times Company and Sheila Rule, a reporter in its employ, move pursuant to CPLR 2304 to quash subpoenas duces tecum served upon them by defense counsel. The subpoenas directed to Ms. Rule and the New York Time Company on behalf of the defendant, Gino Bova, seek "all notes, transcriptions, memoranda, or tape recordings pertaining to the interview of one Dennis Dixon."

The defendant was indicted for the murder of Willie Turks, a transit worker, who was beaten to death on June 22, 1982. The incident giving rise to the death of Turks allegedly arose when Turks, Dixon, and another person were confronted by a group of people who expressed a desire to have them leave the neighborhood where the events transpired. Dixon is listed as a complainant in the fourth count of the indictment, charging assault in the first degree, and the seventh count of the indictment, charging discrimination under the civil rights law.

On January 17, 1983 an article was published in the New York Times entitled, "Scars Linger From Assault In Gravesend." The article concerned an interview Ms. Rule had with Dennis Dixon. In her story, Ms. Rule quoted Dixon as stating:

"When they started shouting at us and calling us names I decided to argue with them that we had every right to be there and wanted to keep coming there.

In some ways, I feel that my decision to confront them might have put Turks in the position he was in."

Two DD5s (police reports) concerning these events were turned over to defense counsel. They read in part as follows:

"Mr. Dixon states that he entered the Bagel Deli at about Midnight and as he was entering his auto a group of guys starting calling out Ethnic Remarks to him (Hey Nigger) at this point as he was opening the door to his auto he stated to the group, "what's this all about." He states he was then hit in the face by a male/white with a beer bottle, and his co-workers were assaulted also. (sic) and "One male approaches the auto and calls out "Hey-Nigger get out of the neighborhood," the complainant gets out of his car to speak with male # 2. Male # 1 now hits Mr. Dixon on the right ear with a beer bottle..." (sic)

Ms. Rule, the reporter who wrote the story, does not generally cover news concerning crimes. She did not witness the incident. Her article, appearing some seven months after the event, was in the nature of a human interest story describing the psychological effects of an alleged attack upon one of the complainants. The article does not refer to defendant in any manner.

The District Attorney of Kings County has submitted a memorandum in support of defendant's position. The District Attorney argues that granting the motion to quash would "set an unfortunate precedent and impact upon criminal prosecution." In other words, if the motion to quash were granted the defense would be prejudiced today; tomorrow (possibly) the prosecution might be prejudiced in an as yet unknown, unlitigated case. In urging its unusual position, which apparently seeks to assist the defense in obtaining material to establish its potential justification defense and impeach the prosecution's potential key witness, the District Attorney states:

"While agreeing with the Times that defendant Bova's subpoenas seek information for highly speculative reasons and may in fact be in the nature of a 'fishing expedition', the District Attorney has no objection to Bova obtaining the material he seeks."

Ms. Rule and the New York Times Company move to quash said subpoenas pursuant to three distinct theories. Petitioners initially argue that the material sought to be discovered is irrelevant, immaterial and collateral; secondly, they contend that the subpoenaed material is protected from exposure by New York's Shield Law (Civil Rights Law § 79-h, as amended, L. 1981, Ch. 468, §§ 1-3); and finally, it is asserted that both the First Amendment of the United States Constitution and Art. I, Sec 8 of the New York State Constitution create a "reporter's privilege" which prevents disclosure of the subpoenaed material.

For the reasons set forth herein, the motions to quash the subpoenas are granted.

I. RELEVANCY AND MATERIALITY

It is settled law that a subpoena duces tecum "may not be used for the purpose of discovery or to ascertain the existence of evidence." (People v. Gissendanner, 48 N.Y.2d 543, 551, 423 N.Y.S.2d 893, 399 N.E.2d 924.) It also may not be used to "fish for impeaching material" (People v. Hasson, 86 Misc.2d 781, 783, 383 N.Y.S.2d 846).

Defendant asserts that the information sought from Ms. Rule and the Times is relevant and material because it might shed light on a possible justification defense. It might also provide a source of impeachment material for use against a key prosecution witness should Mr. Dixon testify at trial. In support of this dual claim, defendant urges that in using the word "confront" when interviewed by Ms. Rule, Mr. Dixon portrayed himself as the possible aggressor in the incident that occurred.

The word "confront", however, when read in context with the preceding paragraph published in the article clearly refers to a verbal confrontation. It is axiomatic that the use of force against another is not justified in response to a mere verbal provocation. Defendant's interpretation of the word "confront" is grossly speculative and unreasonable.

I further note that the defense of justification is founded upon what a defendant reasonably perceives at the time and place of occurrence. The manner in which Dixon characterized the incident, some seven months after the event, has little to do with defendant's reasonable perception of the events as they were enfolding. The claim that Mr. Dixon's interview with Ms. Rule would aid in preparing a justification defense is, at best, exceedingly tenuous. This is in no way meant to reflect upon the viability of any justification defense which may be urged by defendant at trial; these observations are limited to this motion.

Respondent also asserts that Ms. Rule's article contains statements by Mr. Dixon which contradict what he is alleged to have related to the police, as depicted in the DD5s, quoted herein.

While the article contains material not in the police reports, it in no way contradicts them. A fair reading of the DD5s and the article reveals that they are consistent. Additionally, should Mr. Dixon testify at trial, counsel is entitled to, and will be provided with, Mr. Dixon's grand jury testimony and a copy of a statement Mr. Dixon gave to the District Attorney's office. This material will be turned over to the defense prior to cross examination and well before the defense would put in its case. The information contained therein may be a source of impeachment material, as well as an aid in the preparation of any possible justification defense.

I would also comment that Ms. Rule's article touches only tangentially on the crime itself. It is primarily a "human interest" story, contrasting Mr. Dixon's life prior to and after the incident. There is no indication Ms. Rule devoted much time to discussion of the incident itself with Mr. Dixon. One would assume, absent any evidence to the contrary, the bulk of the interview concerned the "before" and "after" aspects of Mr. Dixon's life, rather than an exploration of the incident itself.

The Supreme Court of New Jersey, writing in Re Farber, 78 N.J. 259, 394 A.2d 330, 338 (1978) held that it was the obligation of the issuing party to prove:

"by a fair preponderance of the evidence including all reasonable inferences, that there was a reasonable probability or likelihood that the information sought by the subpoena was material and relevant to his defense, that it could not be secured from any less intrusive source, and that the defendant had a legitimate need to see and otherwise use it."

The court was careful to point out that each case depended upon its unique facts, and made clear that its opinion was

"... not to be taken as a license for a fishing expedition in every criminal case where there has been investigative reporting, nor as permission for an indiscriminate rummaging through newspaper files."

Justice Fuchsberg, writing in Gissendanner, supra, a case dealing with a defense subpoena for the personnel records of two police officers who were key witnesses against the defendants for the purpose of securing possible impeachment material, stated: (48 N.Y.2d at 548, 423 N.Y.S.2d 893, 399 N.E.2d 924)

"... when requests to examine personnel records are motivated by nothing more than impeachment of witnesses' general credibility * * * the defendant's rights have generally been canalized within the bounds of the traditional evidentiary rule that governs the introduction of extrinsic proof of matters collateral to the issues at trial, i.e., its availability rests largely on the exercise of a sound discretion by the trial court."

The court additionally noted at 549, 423 N.Y.S.2d 893, 399 N.E.2d 924 that:

"... access has been denied in cases in which the defendant failed to demonstrate any theory of relevancy and materiality, but, instead, merely desired the opportunity for an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable him to impeach the witness."

The defense must

"put forth in good faith * * * some factual predicate which would make...