People v. Cheche

• Decision Date: 17 May 1991
• Citation: 571 N.Y.S.2d 992,151 Misc.2d 15
• Parties: PEOPLE of the State of New York v. Theodore L. CHECHE, Defendant.
• Court: New York County Court

Page 992

571 N.Y.S.2d 992

151 Misc.2d 15

PEOPLE of the State of New York v. Theodore L. CHECHE, Defendant.

Cayuga County Court.

May 17, 1991.

Bond, Schoeneck & King (Edward R. Conan, of counsel), Syracuse, for movants.

Paul R. Carbonaro, Cayuga County Dist. Atty. (Dennis P. Sedor, of counsel), Auburn, for the People.

W. PATRICK FALVEY, Acting Justice.

Movants, Jackie Majerus, a reporter for The Citizen, newspaper in Auburn, New York and Charles Miller, a reporter for the Syracuse Herald-Journal, The Syracuse Herald American and The Post-Standard, all newspapers in Syracuse, New York, seek orders quashing "subpoenas ad Testificandum" served on May 8, 1991 and May 9, 1991 respectively requiring each of them to testify on behalf of the People in the above entitled criminal matter.

The movants each assert that as professional journalists, they have a qualified privilege from testifying under New York Civil Rights Law (CRL) section 79-h as well as the First Amendment of the Federal Constitution and Art. 1, section 8 of the New York State Constitution.

The subpoenas were issued by the District Attorney's Office as a result of various published interviews conducted with the defendant concerning his involvement with the charges pending against him. More specifically, the articles in question as provided by counsel were published in The Citizen on May 11, 1990; May 13, 1990; May 20, 1990; July 6, 1990; December 9, 1990; February 14, 1991 and an article undated but believed to be in 1991 and entitled "Family: Cheches Team Up in bail business", in the Syracuse Post-Standard on May 12, 1990, and May 14, 1990 as well as The Syracuse Herald American on May 11, 1990 and May 13, 1990. It is noted that CRL section 79-h was amended effective November 1, 1990. (L.1990, c. 33). Therefore, CRL section 79-h(b)-(g) is applicable to those articles published after November 1, 1990 and as to those published prior the Court will rely on relevant case law.

The district attorney also wishes to examine movants concerning any unpublished conversations with the defendant regarding these charges. There is no claim by either party that the information sought is of a confidential nature.

Movants assert that the District Attorney has failed to meet the three-pronged test with regard to published or unpublished material as set out in CRL section 79-h(c) and O'Neill v. Oakgrove Construction Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277.

The United States Supreme Court has declined to create an absolute testimonial privilege for newspeople. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626. However, newsgathering is not without its First Amendment protection. And there exists a qualified privilege to gather, write, edit and disseminate the news. People v. Troiano, 127 Misc.2d 738, 486 N.Y.S.2d 991.

The privilege has been found not to exist if the material obtained by a newsperson was not intended by the informant to be confidential. Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393. Also, the privilege is waived if the newspaper published the material. People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 299. Nor does a privilege exist where the information subpoenaed was published or was not given in confidence. People v. Dupree, 88 Misc.2d 791, 388 N.Y.S.2d 1000.

"In judging a claimed privilege against compelled disclosure, there must be a 'striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.' " People v. Korkala, 99 A.D.2d 161, 167, 472 N.Y.S.2d 310, citing Branzburg v. Hayes, supra.

The Court in U.S. v. Markiewicz, 732 F.Supp. 316 (N.D.N.Y.1990) carefully analyzed the Branzburg v. Hayes decision. It is clear from a close reading of this case that the extent of the privilege is governed by the circumstances of the case presented. The right of confidentiality and testimonial compulsion comes into conflict with the demand of a party for production of evidence in a judicial proceeding. In a criminal case this clash calls for weighing of the claim to privilege against the obligation of all citizens to give testimony and if the latter is found to be superior then the former must give way to it. People v. Monroe, 82 Misc.2d 850, 370 N.Y.S.2d 1007.

The case before this court involves the defendant who has been charged in a 259 count indictment containing 130 counts of Forgery in the Second Degree and 129 counts of Offering a False Instrument for Filing in the First Degree involving the alleged fraudulent preparation and filing of various bail bonds. Prior to indictment the defendant signed a written affidavit regarding his involvement which has been declared admissible in the People's case in chief.

In what makes this case unique, the defendant without being solicited sought out the press and gave numerous interviews regarding his part in the specific charges. Parts of those interviews were published at various times.

The district attorney now subpoenas the reporters involved to testify as to the defendant's statements as they concern the charges.

The district attorney asserts that he has met the three pronged test of CRL section 79-h(c), O'Neill v. Oakgrove Construction, Inc., supra, as well as the more flexible test set out in Markiewicz, supra.

This test requires the court to evaluate a reporter's claimed First Amendment privilege to determine whether the information sought is 1) highly material and relevant; 2) that it is necessary or critical to the maintenance of the parties' claim; and 3) not obtainable from other available sources. Markiewicz, established a somewhat more flexible standard in reviewing the privilege applying whether the testimony sought is 1) relevant; 2) not unduly cumulative; and 3) not available from other sources.

In applying the above tests to the facts it appears to this court that the defendant has sought out the press and discussed, with impunity, the various aspects of his involvement with the charges while at the same time asserting, as is his right, that his statement to the district attorney was involuntary because he was made certain promises. It...