People v. Korkala

• Decision Date: 14 February 1984
• Citation: 472 N.Y.S.2d 310,99 A.D.2d 161
• Parties: , 10 Media L. Rep. 1355 The PEOPLE of the State of New York, Respondent, v. George Gregary KORKALA a/k/a Gary Korkala and Frank Terpil, Defendants, and CBS Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 310

472 N.Y.S.2d 310

99 A.D.2d 161, 10 Media L. Rep. 1355

The PEOPLE of the State of New York, Respondent, v. George Gregary KORKALA a/k/a Gary Korkala and Frank Terpil, Defendants and CBS Inc., Appellant.

Supreme Court, Appellate Division First Department.

Feb. 14, 1984.

Eugene L. Girden, New York City, of counsel (Harold R. Tyler, Jr., Marjorie T. Coleman and Leslie C. Levin, New York City, with him on the brief, Patterson, Belknap, Webb & Tyler, New York City, attorneys), for appellant.

Mark Dwyer, New York City, of counsel (Robert M. Pitler and Matthew T. Crosson, New York City, with him on the brief, Robert M. Morgenthau, New York City, attorney), for respondent.

Before KUPFERMAN, J.P., and SANDLER, ASCH, BLOOM and ALEXANDER, JJ.

PER CURIAM:

In preparation for the re-trial of the defendant George Gregary Korkala on charges of allegedly selling and conspiring to sell arms and explosives to supposed South American terrorists, the District Attorney of New York County issued a subpoena duces tecum to CBS, Inc., for the production of video and audio tapes, including "outtakes" ¹ of conversations with and interviews of Korkala and his cohort Frank Terpil conducted by Mike Wallace, a CBS news correspondent in Beirut, Lebanon, in November 1981.

CBS moved to quash the subpoena, contending that the unpublished materials were protected from disclosure by a "qualified privilege" deriving from the First Amendment to the United States Constitution and also were protected by an "absolute privilege" under the New York Shield Law (Civil Rights Law § 79-h). Trial Term rejected both the Constitutional and Shield Law arguments and denied the motion to quash, 121 Misc.2d 291, 467 N.Y.S.2d 517. We agree with Trial Term's determination as to the applicable legal principles. Nevertheless we deem it appropriate to modify the order to the extent indicated herein.

In an indictment filed in January, 1980, George Gregary Korkala and Frank Terpil, were charged with selling and conspiring to sell arms and explosives to persons they believed to be South American terrorists, but who were, in fact, New York City police officers posing as terrorists. Korkala and Terpil fled the country before they could be brought to trial on these charges. Following a determination by the court that they had voluntarily absented themselves, they were tried in absentia and convicted of the charges. In 1981, while still fugitives and living in a safe-haven in Beirut, Lebanon, Korkala and Terpil gave an extensive interview to Mike Wallace for broadcast on the "60 Minutes" television program. In that interview, they are said to have freely discussed the criminal charges pending against them and the circumstances of their involvement with the supposed "terrorists". Portions of that interview were broadcast on November 8, 1981, on the "60 Minutes" program in a segment entitled:--"Wanted, Terpil and Korkala". That segment was re-broadcast in a shortened version on June 20, 1982.

Korkala was subsequently apprehended in Spain and ultimately returned to this jurisdiction under an agreement whereby the prior conviction would be vacated and a new trial had on the 1980 indictment. In pre-trial proceedings, Korkala has indicated that he intends to raise as a defense the claim that he believed the transaction in which he participated with the supposed "terrorists" was authorized by the Federal Bureau of Investigation, the Central Intelligence Agency and/or some other governmental agency or agencies. He has indicated that he will attempt to prove that he had dealings with various governmental agencies both before and after the transaction upon which the indictment is based.

The People contend that since Korkala freely discussed the transactions which are the subject matter of this indictment with Mike Wallace during the interview which lasted several hours, but only 22 minutes of which were broadcast, they should be provided with the full interview so that should Korkala testify at his retrial as he has indicated he would, any testimony he may give in his defense that varies from statements he made during the interview can be challenged and Korkala impeached thereby. Additionally, the People argue that should any of the admissions he made during the broadcast portion of the interview be challenged when offered at trial as being "out of context", the full interview should be available to provide the "context", and thus refute that challenge; that the video and audio tapes contain admissions by Korkala which amount to confessions of his crimes and evidence that will rebut his proposed defense and that the broadcast portions of the interview and the summaries by Wallace, make clear that the discussion of the matters which are the subject of the indictment continues for quite sometime in the "outtakes".

In response to CBS's claim of an "absolute privilege" afforded by the Shield Law, the People point out that Korkala and Terpil were paid for their interview, and knew that all or part of it, as determined in CBS's sole discretion, would be broadcast. Thus the expectation of confidentiality said to be required in order to invoke the Shield Law is missing. CBS contends, on the other hand that the People already have that portion of the interview that was broadcast and that as to the unbroadcast material there has not been a showing of materiality, relevance or necessity sufficient to override the immunity from disclosure they enjoy under the freedom of the press guarantee of the First Amendment; that any required production of the unbroadcast material would have a "chilling effect" on their ability to freely gather and disseminate "news". Thus, they argue, under the "balancing test" developed by the courts in respect to the fair trial-free press conflict, the subpoena should be quashed. In any event, argues CBS, the 1981 amendment to the New York Civil Rights Law, § 79-h evinces a legislative intent to "close the loopholes" engrafted on the statute by judicial interpretation, including the requirement that the information sought must have been acquired under a "cloak of confidentiality". The amended statute, they say, creates an "absolute privilege" against the enforced disclosure of "any news or the source of any news coming into (a professional journalist or newscaster's) possession in the course of gathering or obtaining news for publication" (Civil Rights Law § 79-h(b)).

CBS bottoms its legislative intent argument upon the statement of Assemblyman Steven Sanders, an early sponsor of the proposed 1981 amendments, that the purpose of the legislation was "to correct loopholes and fill gaps in the existing statute" by guaranteeing "absolute coverage" to newsmen. ( [1981] N.Y. State Legis.Ann. at 257-258) (see p. 20, Appl. Brief). They find support for this argument in the decisions of two trial courts (People v. Iannaccone, 112 Misc.2d 1057, 447 N.Y.S.2d 996, aff'd. 96 A.D.2d 488, 465 N.Y.S.2d 795 ² and Wilkins v. Kalla, 118 Misc.2d 34, 459 N.Y.S.2d 985), both of which hold that the 1981 amendments confer an absolute privilege against compelled disclosure of "any news" by doing "away with the 'cloak of confidentiality' requirement" (People v. Iannaccone, supra, 112 Misc.2d at p. 1061, 447 N.Y.S.2d 996 and making it clear "that its protection extends not only to confidential sources, but also to all unpublished information." (Wilkins v. Kalla, supra, 118 Misc.2d at p. 36, 459 N.Y.S.2d 985.)

There can be no doubt that prior to the 1981 amendments to § 79-h of the Civil Rights Law, the thrust of the New York Shield Law was deemed by our courts to be aimed at encouraging a free press by shielding from compelled disclosure those communications, and their source, that were obtained by the news media in confidence during the course of news gathering. The cases uniformly held that in order for a communication or its source to be shielded from disclosure it must be shown that the information was imparted to the newsman under a cloak of confidentiality upon an understanding, either express or implied, that either the information or its sources or both, would not be revealed. (Matter of WBAI-FM, 68 Misc.2d 355, 326 N.Y.S.2d 434, aff'd sub nom, Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393; Matter of Wolf v. People, 69 Misc.2d 256, 329 N.Y.S.2d 291, aff'd 39 A.D.2d 864, 333 N.Y.S.2d 299; Matter of Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442). Where the information had not been received under a recognizable cloak of confidentiality however, no privilege against disclosure of either the material or the source attached. (Matter of Andrews v. Andreoli, supra.)

Obviously there was no understanding or expectation here of confidentiality in respect to the Korkala/Terpil interview. Indeed, the clear expectation was that the interview would be broadcast on the "60 Minutes" program thus exposing both the material and its source. Under the settled pre-1981 interpretation of § 79-h, no privilege shields the unbroadcast material, these "outtakes", from production. Unless the 1981 amendments have created an "absolute privilege", as asserted by CBS, Trial Term was correct in denying the motion to quash on Shield Law grounds. We hold that no "absolute privilege" was created by those amendments.

Assemblyman Sanders' intention to "correct loopholes and fill gaps" in respect to § 79-h of the Civil Rights Law, apparently did not survive the legislative process, since only two of the twelve "notwithstanding" provisions contained in the initial version of the bill (S. 3553/A4547) were finally enacted by the Legislature. (S. 3553-B/A4547-B). Indeed, the very provision contained in the initial version of the bill that would have eliminated the "cloak of confidentiality" requirement for invoking the Shield Law was deleted...