People v. Iannaccone

• Decision Date: 28 January 1982
• Citation: 447 N.Y.S.2d 996,112 Misc.2d 1057
• Court: New York Supreme Court
• Parties: , 8 Media L. Rep. 1103 The PEOPLE of the State of New York v. Arnold IANNACCONE, Defendant.

Page 996

447 N.Y.S.2d 996

112 Misc.2d 1057, 8 Media L. Rep. 1103

The PEOPLE of the State of New York v. Arnold IANNACCONE, Defendant.

Supreme Court, Trial Term,

New York County, Part 92.

Jan. 28, 1982.

Martin B. Adelman, P. C., New York City, for defendant.

Asst. Dist. Attys. Steven E. Saracco and Irving B. Hirsch, New York City, for the People.

Slade R. Metcalf of Squadron, Ellenoff, Plesent & Lehrer, New York City, for New York Magazine.

PATRICK W. McGINLEY, Justice:

Ellen Count, a professional journalist, currently on assignment for New York Magazine, moves to quash a subpoena duces tecum pursuant to CPLR section 2304, served upon her by defense counsel. The subpoena seeks to compel Ms. Count to disclose any original or copy of transcript of a tape recording made by Ms. Count and any notes of interviews conducted with witnesses or participants in the instant case.

Any information possessed by Ms. Count is for the preparation of a magazine article which has yet to be published. Ms. Count became involved in the current proceedings while on assignment for Family Circle Magazine. On October 19, 1980, while riding in a patrol car, Ms. Count accompanied two New York City police officers to the scene of the homicide involved in the case on trial and then to the hospital where the victim was taken.

The defendant is on trial for the murder of his brother-in-law, Anthony Fiore. On the evening in which the shooting occurred, Ms. Count was carrying a recorder, the tape of which has been made available to the police, the District Attorney's Office, and subsequently to defense counsel. Defense counsel and counsel for Ms. Count agree, therefore, that defense counsel's request under the subpoena for this tape recording is no longer at issue.

Susana Duncan, an editor with New York Magazine, affirms that Ms. Count was placed on assignment to research a proposed article on this case for New York Magazine in August of 1981.

Ms. Count objects to the identification of her confidential sources and to the production of her notes on the grounds that the requested information and documents are privileged under

1. section 79-h of the New York Civil Rights Law, commonly referred to as the Shield Law;

2. general rules of evidence; and

3. the First and Fourteenth Amendment to the United States Constitution.

Ms. Count contends in her affidavit that some of the people who consented to be interviewed would do so only on the condition that their identity would remain confidential.

Since New York's Shield Law was only recently amended in July of 1981, a determination of the scope of a reporter's privilege under the new law, which was amended to strengthen the already existing Shield Law (summary of text of L.1981, ch. 468, NY Sessions Law; the New York Times, Jan. 24, 1982, sec. E, p. 20) appears to be one of first impression.

No privilege existed at common law for a reporter who refused to divulge his information or sources. Shield Laws were enacted to abrogate or modify this common law-rule (In re Vrazo, 176 N.J.Super. 455, 423 A.2d 695 ).

The New York Shield Law exempts professional journalists "presently or having previously been employed or otherwise associated with any ... magazine ..." from contempt of court for "refusing or failing to disclose any news or the source of any such news coming into his possession in the course of gathering or obtaining news for publication or to be published in a ... magazine ... by which he is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material ... gathered by a is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist ... prior to disclosure to him." (Civil Rights Law, § 79-h as amended, L.1981, ch. 468, §§ 1-3).

Defense counsel concedes that Ms. Count, who has worked as a reporter or writer for various magazines for some twenty years, is a "professional journalist" within the meaning of the statute.

The court finds that ordering the reporter, under the circumstances of this case, to produce any notes compiled by her concerning interviews with any witnesses or participants connected with this case would be in direct contravention of her statutory rights under the Shield Law. The court holds that the statute protects her from divulging not only the identity of her sources, but also against the compulsory disclosure of any notes (People v. Marahan, 81 Misc.2d 637, 368 N.Y.S.2d 685 ).

"The interests of the press that form the foundation for the privilege are not diminished because the nature of the underlying proceeding out of which the request for the information arises is a criminal trial" such as this (United States v. Cuthbertson, 630 F.2d 139, 147 ). A reporter's interest "in protecting confidential sources, preventing intrusion into the editorial process, and avoiding the possibility of self-censorship created by compelled disclosure of sources and unpublished notes does not change because a case is civil or criminal." (Id.)

Although there may be circumstances in which a reporter's privilege under the Shield Law may yield to a defendant's Sixth Amendment right to a fair trial, those circumstances are not presented in the instant case. Precisely what circumstances will constitute the appropriate case in which the Shield law must yield remains for future consideration. In this case, the court holds that the reporter is shielded.

The court notes that interpretations of the old Shield Law contain some authority for the proposition that the defendant, in seeking disclosure, must make some threshold showing that the information sought is material, relevant, and necessary to the proof of the crime charged, the proof of any potential defenses, or to the reduction of the classification or penalties related to the offenses charged (New York Times v. Jascalevich, 439 U.S. 1331, 99 S.Ct. 11, 58 L.Ed.2d 38 Marshall, J., in chambers) (on reapplication for stay); United States v. Orsini, 424 F.Supp. 229 (E.D.N.Y.), affd. 559 F.2d 1206 cert. den. 434 U.S. 997, 98 S.Ct. 636, 54 L.Ed.2d 491 People v. Monroe, 82 Misc.2d 850, 370 N.Y.S.2d 1007 State v. Sandstrom, 224 Kan. 573, 581 P.2d 812, cert. den. 440 U.S. 929, 99 S.Ct. 1265, 59 L.Ed.2d 485 ). However, New York's Shield Law was amended to exempt professional journalists from contempt "notwithstanding that the material or identity of a source of such material or related material gathered by a ... is or is not highly relevant to a particular inquiry of government ...." (Civil Rights Law, § 79-h, as amended, L.1981, ch. 468, § 2).

"Words and phrases used in a statute should be given their ordinary meaning when ... the legislature has given no indication that a different meaning was intended" (People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 ). The clear language of the New York Shield Law indicates that the legislature intended to prevent a defendant from conducting a "fishing expedition" into the work product of a reporter, regardless of the relevancy of any material in the reporter's possession. The reporter's information and source of such information are privileged regardless of its relevancy. Therefore, no threshold showing, as required in previous cases, would be availing since the statute excludes relevancy as a consideration.

Concededly, a portion of Ms. Count's interviews was conducted with people who did not demand confidentiality. Neither the old Shield Law nor the 1981 amended version explicitly requires the communication to be confidential in order to be privileged.

Section 79-h excludes a journalist from contempt "notwithstanding that the information...