People v. Glogowski

Decision Date15 June 1987
Citation517 N.Y.S.2d 403,135 Misc.2d 950
Parties, 14 Media L. Rep. 1697 The PEOPLE of the State of New York v. Stephen GLOGOWSKI, Defendant.
CourtNew York County Court

Office of the Monroe County Dist. Atty. by: Kenneth Hyland, Asst. Dist. Atty., of counsel, for people.

Office of the Public Defender by: Richard Friedfertig, Asst. Public Defender, of counsel, for defendant.

Nixon, Hargrave, Devans & Doyle by: Andrew C. Rose, and William Brandt, of counsel, for Gannett Company, Inc.

Goldstein, Goldman, Kessler & Underberg by: Sharon P. Stiller, and Russell I. Zuckerman, of counsel, for Flower City Television Corp.: (WOKR--Channel 13).

MARK, Justice.

The defendant, who is charged with Murder 2nd Degree, made an application pursuant to Criminal Procedure Law, Section 710.20(3) to suppress his oral, written and videotaped confessions upon the ground that the same were obtained illegally. A hearing was conducted at which time the oral confession was testified to and the written and videotaped confessions were received as exhibits. The defendant requested the Court to view the videotape in camera to avoid any possible prejudicial pre-trial publicity; the prosecutor did not oppose. However, Gannett Company, Inc., the publisher of two local newspapers, intervened to oppose this procedure, and Flower City Television Corp., WOKR (Channel 13), a local television station, intervened and applied for permission to copy the videotape for televising.

The media intervened in this case in accordance with the case law which mandates that any application for "closure" be accompanied by notice to the media and an opportunity to be heard (Matter of Herald Co., Inc. v. Weisenberg, 59 N.Y.2d 378, 465 N.Y.S.2d 862, 452 N.E.2d 862; Gannett Co. v. DePasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544, affd. 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608; Matter of Capital Newspapers Div. v. Moynihan, 125 A.D.2d 34, 512 N.Y.S.2d 266; Matter of Johnson Newspaper Corp. v. Parker, 101 A.D.2d 708, 1027, 475 N.Y.S.2d 951). The media treated this issue as one of closure of the courtroom, since the defendant did not want the videotape viewed in open court (People v. Glover, 60 N.Y.2d 783, 469 N.Y.S.2d 677, 457 N.E.2d 783; Matter of Westchester-Rockland Newspapers, Inc. v. Leggett, 48 N.Y.2d 430, 423 N.Y.S.2d 630, 399 N.E.2d 518; Matter of Associated Press et al v. Bell, 128 A.D.2d 59, 130 A.D.2d 433, 515 N.Y.S.2d 432; People v. Dominy, 116 A.D.2d 851, 498 N.Y.S.2d 268). However, the precise issue here is whether the media and the public can be denied access to or copying of an exhibit that has been admitted into evidence during a court proceeding.

Because of the reasoning that follows, the application of the press that the videotape be played in open court was granted, and the application of the television station that it be allowed to copy and broadcast the videotape was denied.

The federal and State case law on this subject is unanimous in holding that any exhibit received at a hearing or trial becomes part of the public record and as such is accessible to the media and public.

The landmark case in this area is Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570. There, during the course of a celebrated trial tape recordings of conversations were entered into evidence, played for the jury in open court and the jurors, reporters and spectators were furnished with earphones and transcripts. The transcripts were not introduced into evidence but were widely reported by the media. The salient holding of that case was a rejection of public copying of the tapes based upon legislation enacted by Congress specifically restricting public access to the tapes. However, the United States Supreme Court recognized a constitutional as well as a common law right of access to judicial records, but held that this constitutional right was satisfied when the public and the media had the opportunity to attend the trial and observe the evidence and the media had the opportunity to publish the evidence introduced at the trial.

The 2nd Circuit Court of Appeals in Application of National Broadcasting Co., Inc. (United States v. Myers), 635 F.2d 945, affirmed a District Court decision to allow television networks to copy and televise videotapes entered into evidence at a criminal trial subject to the qualifications that the tapes were to be copied at the close of the trial day in which each tape was admitted into evidence. During the trial the tapes could be seen and heard by journalists and spectators and verbatim transcripts of the contents of the tapes were distributed to the jury and the press. The court ruled that the tapes were evidence and therefore under common law principles were available to the public and the media unless there was a strong showing of reasons why they should not be made public.

A case closely paralleling this case is United States v. Carpentier, 526 F.Supp. 292, affd. 689 F.2d 21. In that case, at a sentencing hearing the defendant made a tactical decision not to have tapes played in court and to bypass any examination of witnesses concerning the contents of the tapes, and the Government moved to admit the tapes into evidence in court. The District Court held that the tapes became a matter of public record upon their admission into evidence and so the media and the public should be allowed to hear the tapes and be given access to them. That court further held that the fact that the tapes were not played during the hearing was not dispositive since by their admission into evidence they became part of the public record.

A case illustrating both facets of this principle is United States v. Miller, 579 F.Supp. 862. There, at the initial bail hearing the Government relied upon an affidavit from a government agent in which he described in detail conversations recorded on audio and/or video tapes, and he was extensively cross-examined as to their contents. Such tapes, however, were never introduced into evidence at this hearing. At a subsequent bail reduction appeal hearing, two other audio and video tapes were offered into evidence in their entirety and parts were played in open court. The District Court held that the tapes received into evidence at the second hearing became part of the public record in their entirety although only partially played in court, but that the tapes referred to in the affidavit at the first hearing were not accessible to the media because they were not offered into evidence.

New York case law is in complete accord with the federal case law. The Appellate Division, 2nd Department, in Matter of Werfel v. Fitzgerald, 23 A.D.2d 306, 260 N.Y.S.2d 791, after tracing the history of the right of inspection of records from the king's courts, concluded that records prior to trial were not available for public inspection until there were proceedings in open court, following which the records were accessible to all persons. Matter of Hearst Corp. v. Vogt, 62 A.D.2d 840, 406 N.Y.S.2d 567, flatly held that photographs which were received into evidence as exhibits during a trial became part of the official record and the press could not be denied the right to inspect them. Implicit in the holding in Matter of WNYT-TV v. Moynihan, 97 A.D.2d 555, 467 N.Y.S.2d 734, that the trial court did not abuse its discretion in not permitting the media to copy tape recordings introduced at trial, was a finding that the common law right to inspect judicial records was observed by providing the media with a transcript.

Thus, it is manifest...

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1 cases
  • People Of The State Of N.Y. v. Williams
    • United States
    • New York Supreme Court
    • November 15, 2010
    ...argument that the release of the videotapes and transcripts may prejudice the defendant is untenable. (See People v. Glogowski, 135 Misc 2d 950, 517 NYS2d 403 [N.Y.Co.Ct. 1987] affirmed 168 AD2d 1009, 565 NYS2d 357 [4th Dept. 1990]; United States v. Graham, 257 F.3d 143 [2d Cir. (NY) 2001])......

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