People v. Doe

• Citation: 560 N.Y.S.2d 177,148 Misc.2d 286
• Parties: , 18 Media L. Rep. 1641 The PEOPLE of the State of New York v. John DOE, Defendant. St. Lawrence County
• Decision Date: 21 August 1990
• Court: New York County Court

Page 177

560 N.Y.S.2d 177

148 Misc.2d 286, 18 Media L. Rep. 1641

The PEOPLE of the State of New York v. John DOE, Defendant.

St. Lawrence County.

Aug. 21, 1990.

Bond, Schoeneck & King (Elizabeth S. Riker, Syracuse, Esq., of counsel), for defendant Richard Roe.

Charles A. Gardner, Dist. Atty., St. Lawrence County (Jerome J. Richards, Esq., Asst. Dist. Atty., on the brief), for the People.

EUGENE L. NICANDRI, Judge.

The Court has been asked to quash a Grand Jury subpoena which seeks testimony from a newspaper reporter, who allegedly tape recorded a DEC Administrative Hearing.

In accordance with the mandate of Criminal Procedure Law § 190.50, the names of the decision have been changed, so as to avoid disclosure of the identity of any person subpoenaed before the Grand Jury.

As presented by the affidavits, memoranda and oral argument, the facts are as follows.

Reporter Richard Roe working for Newspaper A as a general reporter covered a Department of Environmental Conversation hearing involving the approval of a permit for the proposed incinerator under consideration by the St. Lawrence County Solid Waste Development Authority. At the beginning of the administrative hearing, the Administrative Law Judge called media representatives present at that time to the bench and advised them that no tape recording of the hearing would be allowed, so as to avoid any potential conflict between such tape recordings and the official stenographic record of the proceeding. It is not clear to the Court whether Richard Roe was present before the Administrative Law Judge at that time, or not.

Later, a spectator who was present at the hearing complained to the Administrative Law Judge, that she observed Richard Roe using a tape recorder during a portion of one day of the hearing. Her suspicion that the proceedings were tape recorded was, in her mind, confirmed when she read the next day's news coverage of the hearing carried by Newspaper A. The article by Richard Roe contained what the spectator-complainant believed were verbatim portions of the testimony.

The Administrative Law Judge referred this complaint to the Office of the Attorney General, who in turn forwarded it to the attention of the St. Lawrence County District Attorney. The District Attorney referred it to the Ogdensburg Police Department for investigation, and the police interviewed the complainant. Richard Roe refused to answer police questions. The Ogdensburg Police Department recommended that the file be closed. The District Attorney elected not to follow this recommendation. The Grand Jury directed the District Attorney to subpoena Richard Roe to testify. Richard Roe, who now works for Newspaper B, has been granted immunity.

The focus of the Grand Jury inquiry is whether or not Newspaper A violated various provisions of law by allegedly allowing or directing its reporter to tape record a proceeding in apparent violation of a direction by the Administrative Law Judge not to do so. Newspaper B now seeks to protect its reporter by this motion to quash the subpoena.

In support of its position, Newspaper B argues that the reporter is a professional journalist who was involved in on-the-job news gathering activities. The event in question was a public hearing and involved no confidential sources. In particular, the District Attorney has acknowledged to Newspaper B's counsel that the purpose of the subpoena to Richard Roe was to compel testimony as to whether Richard Roe had tape recorded the DEC hearing in October, 1989.

The District Attorney's theory of law is that Civil Rights Law § 52 makes it a misdemeanor for a person to tape record a hearing and that when a news reporter does so in the context of preparing a written news account based on the tape recording, this constitutes a "broadcast" of proceedings in violation of the statute.

The newspaper argues that no reasonable interpretation of § 52 of the Civil Rights Law includes tape recordings by a news reporter for the purpose of maintaining accuracy in a subsequent written account, and that therefore the purpose of the Grand Jury investigation is not legitimate. The legal theories underlying the newspaper's position involve a qualified newsperson's privilege claimed under the state and federal constitutions. The newspaper grounds its arguments particularly on the recent Court of Appeals holding in O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277 (1988), in which the Court found that Article 1, Section 8 of the New York State Constitution provides an independent ground for recognition of a qualified reporter's privilege, regardless of whether the material sought was confidential or non-confidential, and further noting that the qualified privilege is only overcome when the party seeking disclosure can show that the items or information sought are 1) highly material, 2) critical to the litigant's claim and 3) not otherwise available. 71 N.Y.2d 521, 527, 528 N.Y.S.2d 1, 523 N.E.2d 277.

However, the Court itself noted (footnote no. 2, 71 N.Y.2d 521, 528, 528 N.Y.S.2d 1, 523 N.E.2d 277) that different issues were presented in the Grand Jury context, in which the government had a strong countervailing interest in compelling disclosure. The Court of Appeals noted that in that situation the United States Supreme Court had declined to find a qualified reporter's privilege in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). On that question, the Court of Appeals in O'Neill explicitly did not express an opinion.

It would appear that some other federal courts in various contexts are recognizing a qualified reporter's privilege against disclosing even non-confidential information. See for example Matter of Consumers Union, 495 F.Supp. 582 (Southern District of New York, 1980) and United States v. Burke, 700 F.2d 70 (2nd Circuit, 1983), cert. denied 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983). However, in this federal judicial district such is not necessarily the law, even in the context of civil litigation. So largen Electric Motor Car Corp. v. American Motors Corporation, 506 F.Supp. 546, 552 (N.D.N.Y.1981) [requiring reporter to appear under subpoena and raise privilege after questions].

The newspaper further relies upon the Court of Appeals holding in Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304 (1984). However, that case was decided under the New York State Shield Law (Civil Rights Law § 79-h).

In opposing the motion to quash, the People have tendered to the Court for in camera examination a Grand Jury transcript of testimony of the complainant. The Court has determined no disclosure is required in order to resolve the issues presented. In addition, the District Attorney points out factually that the Grand Jury directed him to issue the subpoena, not vice versa and that its power to do so is virtually unlimited.

The District Attorney points out that it is his statutory function (Criminal Procedure Law § 190.25(6)) to be the legal advisor to the Grand Jury, along with the supervising court, and that no one else may give legal advice to that body. The People further note that the Grand Jury has an important investigatory function in addition to its more traditionally recognized accusatory function. Furthermore, the Grand Jury can and periodically does return a "no bill", thus clearing accused persons of criminal liability.

Finally, the District Attorney points out that what is sought from Richard Roe is simply the reporter's testimony, not the production of any materials or alleged tapes, a fact which makes inapposite much of the case law relied upon by the newspaper in its motion to quash.

Moreover, the People take the position that the news reporter's testimony is unavailable from any other source and is directly relevant to...