People v. Korkala

• Decision Date: 15 September 1983
• Citation: 467 N.Y.S.2d 517,121 Misc.2d 291
• Parties: , 9 Media L. Rep. 2285 The PEOPLE of the State of New York v. George Gregary KORKALA a/k/a Gary Korkala and Frank Terpil, Defendants.
• Court: New York Supreme Court

Page 517

467 N.Y.S.2d 517

121 Misc.2d 291, 9 Media L. Rep. 2285

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

Supreme Court, Trial Term,

New York County, Part 93.

Sept. 15, 1983.

Robert M. Morgenthau, Dist. Atty., New York County, New York City (Matthew Crosson and Michael Sherman, New York City, of counsel), for the People.

THOMAS B. GALLIGAN, Justice:

The Columbia Broadcasting System, Inc. (hereinafter CBS) moves pursuant to CPLR 2304 to quash a subpoena duces tecum served upon it by the District Attorney, seeking any and all videotapes and audiotapes, including outtakes, of conversations and interviews with Frank Terpil and George Gregary Korkala in October or November, 1981 in Beirut, Lebanon. Portions of these filmed interviews were broadcast by the CBS Television network on its "60 Minutes" program on November 8, 1981 and rebroadcast on June 20, 1982.

Terpil and Korkala had been tried, convicted and sentenced in absentia in 1980, after it had been determined, at a hearing, that they voluntarily absented themselves from the trial. The gravamen of the indictment was the sale and conspiracy to sell weapons to "terrorists" from an unnamed South American country. Actually, the "terrorists" were undercover New York City police officers.

In the 1981 interview by Mike Wallace, a CBS news correspondent, they discussed their activities as agents "for hire." Early in 1982 Korkala was apprehended in Spain and after extensive litigation in that jurisdiction, he was extradited to the United States on condition that he receive a new trial here. The United States Government and the District Attorney of New York County having agreed to that condition, the prior judgment of conviction was vacated and a new trial ordered. It is in that posture that the District Attorney served the subpoena upon CBS which has become the subject of this motion.

CBS argues that the First Amendment to the Constitution of the United States provides a qualified privilege to journalists in these circumstances whereby CBS may decline to divulge the information sought; and second, that Civil Rights Law sec. 79-h (the New York Shield Law) extends to journalists an absolute privilege not to disclose the subpoenaed material.

The District Attorney denies that the subpoena will infringe on or compromise any First Amendment right and further that the Shield Law provides no protection absent either an express or implied agreement between the informant and the journalist that the information was imparted in confidence.

The contention by CBS, that it possesses a constitutional privilege not to disclose the subpoenaed information, casts in issue the historic tension between the First Amendment guarantees of a free and unfettered press and the equally fundamental imperatives of due process and fair trial.

The responsibility for reconciling and accommodating these sometimes polarized constitutional demands has traditionally fallen and does today fall to the courts. This process requires a delicate balancing of interests by the court.

"The asserted claim to privilege should be judged on its facts by the 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. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions." (Branzburg v. Hayes, 408 U.S. 665 at 710, 92 S.Ct. 2646 at 2671, 33 L.Ed.2d 626.)

The application of this principle to the facts at bar requires a weighing of the respective interests of each party and an assessment of the overall interests of society as a whole. In doing so, it is significant that CBS is not being requested to disclose a confidential source, but rather information freely disclosed by a known informant. The interest of society in the fair administration of justice and the full disclosure of all facts material to a criminal trial is all the more compelling when "it is information which is being withheld and not the identity of the source. (See New York Times Co. v. Jascalevich, 439 US 1317, 1331 [99 S.Ct. 6, 12, 58 L.Ed.2d 25].)" (People v. Le Grand, 67 A.D.2d 446 at p. 453, 415 N.Y.S.2d 252.) Moreover, the inconvenience to CBS in requiring production of this information, if there be any, is clearly minimal.

Balanced against this is the interest of the People in having a criminal trial proceed upon a full exposition of all relevant and material facts. Manifestly, the words of the defendant, in the context of this case, are very highly probative. (Cf. People v. Marahan, 81 Misc.2d 637, 643-644, 368 N.Y.S.2d 685, reporter's notes and testimony for impeachment on collateral issue protected] ).

In advancing its claim of First Amendment privilege CBS claims that a journalist is protected from the compelled disclosure of unpublished information in criminal as well as civil cases unless the party seeking such information demonstrates that it is: (1) highly material and relevant; (2) central to the claims at issue; and (3) unavailable from alternative sources. Movant alleges that the District Attorney has not met his burden on these issues. (Movant brief, p. 4.)

The three-pronged test suggested had its genesis in the dissenting opinion of Justice Stewart in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, and was rejected in the concurring opinion of Justice Powell. (Id. at 710, 92 S.Ct. at 2671.)

Recently, in Matter of Beach v. Shanley, 94 A.D.2d 542, 466 N.Y.S.2d 725 [3 rd Dept. decided July 21, 1983, revg. Matter of Grand Jury Investigation, 118 Misc.2d 195, 460 N.Y.S.2d 227], where the County Court quashed a subpoena served upon a television newscaster requiring him to testify before a Grand Jury, Justice Yesawich, speaking for a unanimous court, noted that the petitioner interpreted "Justice Powell's concurring opinion (Branzburg v. Hayes, 408 U.S. 665 [92 S.Ct. 2646, 33 L.Ed.2d 626] supra ) as adopting a test akin to that preferred by Justice Stewart in his dissent, namely, that the prosecution must demonstrate that the intelligence to be gathered from the reporter is absolutely necessary to the investigation, that there is a compelling and overriding governmental interest in obtaining the testimony, and that the information sought cannot be obtained by other means less destructive of First Amendment rights [id. at 743, 92 S.Ct. at 2681]. We disagree, for we read Justice Powell's concurrence not as sanctioning this type of balancing test, but as criticizing it for unfairly subordinating 'the essential societal interest in the detection and prosecution of crime' ... (id. at 710, n ); see Matter of Farber, 78 NJ 259 , cert. den. 439 US 997 [99 S.Ct. 598, 58 L.Ed.2d 670] )." (Id. at 544, 466 N.Y.S.2d 725.)

United States v. Burke, 700 F.2d 70 (2d Cir.1983), appears to have adopted the three-pronged test in criminal cases. However, a careful reading of Branzburg, supra, would not seem to require such a finding. In any case, even if the three-pronged test were applied to the facts of this case, it is clear that the interview provides relevant material which cannot be obtained from any other source than CBS, and the subject matter of the interviews speaks directly to the issues to be litigated at trial. The public interest in the fair administration of justice countervails any insignificant burden to CBS, and the record here is barren of any evidence that disclosure of this information will inhibit or chill the ability of CBS effectively to gather and report news in the future. (See Matter of Dan v. Simonetti, 80 Misc.2d 399, 363 N.Y.S.2d 493, mod. 41 A.D.2d 687, 342 N.Y.S.2d 731; People v. Dupree, 88 Misc.2d 791, 388 N.Y.S.2d 1000; People v. Zagarino, 97 Misc.2d 181, 411 N.Y.S.2d 494; People v. Le Grand, supra.)

Accordingly, the motion to quash the subpoena on constitutional grounds is denied.

In evaluating the extent of the privilege afforded newsmen by the Shield Law, it is necessary to determine whether the statutory privilege encompasses both confidential and non-confidential information. It should be noted that the Shield Law does not refer to confidential and nonconfidential information,in haec verba, in either its original form or as presently constituted.

In ascertaining legislative intent, a comparison of the present and the former statute can be useful. (Hezekiah v. Williams, 106 Misc.2d 407, 431 N.Y.S.2d 744, affd. 81 A.D.2d 261, 440 N.Y.S.2d 274, 56 N.Y.Jur. Statutes, sec. 90.)

The first draft of the amendment of the Shield Law (A. 4547, S. 3553) in the 1981-1982 Regular Sessions, contained eleven "notwithstanding" clauses in Section 2(b) of Civil Rights Law, sec. 79-h which delineate the scope of the statute's protection. One of the clauses stated that the protection of the Shield Law would apply to information "notwithstanding the source of such information having been or being confidential or non-confidential"; another stated that "notwithstanding the information having been in part or in whole publicly disseminated or not publicly disseminated, published or unpublished, broadcasted or not broadcasted"; a third clause stated "notwithstanding the source of such information having been identified or not identified."

The next version of the bill (A. 4547-A, S. 3553-A) in the same session, eliminated eight of the eleven "notwithstanding" clauses including the three listed above. The final version of the bill, which was ultimately enacted into law on July 7, 1981 (A. 4547-B, S. 3553-B), did not include the clauses referred to above which were part of the first draft.

While not dispositive on the issue of legislative intent, the rejection of specific statutory provisions is a significant consideration when divining legislative intent. (People for Environmental Progress v. Leisz, 373 F.Supp. 589; see Fox v. Standard...