People v. LeGrand

• Decision Date: 16 April 1979
• Citation: 67 A.D.2d 446,415 N.Y.S.2d 252
• Parties: The PEOPLE, etc., Plaintiff, v. Navatro LeGRAND, Respondent. Appeal of Lee HAYS.
• Court: New York Supreme Court — Appellate Division

Page 252

415 N.Y.S.2d 252

67 A.D.2d 446

The PEOPLE, etc., Plaintiff, v. Navatro LeGRAND, Respondent Appeal of Lee HAYS.

Supreme Court, Appellate Division, Second Department.

April 16, 1979.

Clark, Wulf, Levine & Peratis, New York City (Melvin L. Wulf, New York City, of counsel), for appellant

Joel S. Ezra, New York City, for respondent.

Henry R. Kaufman, New York City, for Association of American Publishers, Inc., amicus curiae.

Irwin Karp, New York City, for The Authors League of America, Inc., amicus curiae.

Before TITONE, J. P., and O'CONNOR, MARTUSCELLO and MANGANO, JJ.

TITONE, Justice Presiding.

The issue presented on appeal is whether under the circumstances, the appellant, who is an author, was justified in refusing to divulge his notes of an interview with a probable prosecution witness where the defense subpoenaed those notes for possible use for impeachment purposes.

THE FACTS

Appellant, Lee Hays, has written and published approximately 30 books, fiction and nonfiction, as well as several magazine articles. As an employee of CBS News, NBC News, and television station WNET on divers occasions, he has also written, produced and directed numerous documentary films and news broadcasts.

In February, 1977, Mr. Hays contracted with Thomas Y. Crowell, Inc., now a subsidiary of Harper & Row, Inc., to write a book about the alleged crime "family" of one DeVernon LeGrand. Mr. Hays attended three trials of "family" members the ensuing year.

During such period appellant also conducted a number of interviews to obtain information about the members of the LeGrand family and their activities. One such interview was with Willie Frank Holman, for many years a member of the LeGrand household. Holman has testified as a witness for the People at all the Grand Jury presentations and at the trial of two of the family members. He is expected to testify for the prosecution at the forthcoming trial of defendant Navatro LeGrand, who is charged with murder in the second degree. The stated purpose of the subpoena under review, issued on behalf of the defendant and served on appellant, is to obtain evidence of an impeaching nature with which to attack Mr. Holman's credibility, and for discovery and inspection of the following material:

"tape recording(s) and notes of your conversations with an individual named Willie Frank Holman, which tape recordings or notes relate to the above entitled action and which notes and/or tape recordings were made by you, subsequent to the trial of the action entitled The People of the State of New York v. DeVernon LeGrand (known as the Timmons case) and prior to the commencement of the action entitled The People of the State of New York v. Aron LeGrand and Steven Straun LeGrand."

Appellant moved at Criminal Term to quash the subpoena claiming, Inter alia, that it violates the First and Fourteenth Amendments to the United States Constitution, section 8 of article I of the New York State Constitution and section 79-h of the New York Civil Rights Law. He claims that Mr. Holman's interviews were conducted with the understanding that the information would not be revealed prior to the publication of appellant's book. To compel its disclosure, argues appellant, would be to violate his privilege as a writer.

Criminal Term denied the motion to quash, holding that Mr. Hays was an author, not a journalist, and therefore was not protected either by the "shield law" (Civil Rights Law, § 79-h) or the "freedom of the press" provisions of the United States and New York State Constitutions. It also held that Mr. Holman's information was imparted without any agreement for confidentiality. Based on such findings, Criminal Term ordered that appellant must produce his notes in the event Holman testifies at LeGrand's trial.

THE "SHIELD LAW"

Appellant contends that section 79-h of the Civil Rights Law should be read to include authors as well as journalists. Such a liberal construction, it is suggested, would fulfill the legislative intent of protecting It is clear from a reading of section 79-h of the Civil Rights Law, quoted below, that the language therein is specific in its definitions and limited as to those it is meant to benefit:

the free flow of information necessary to maintain democracy, since appellant is reporting the same events as would the daily journalist, even though publication is deferred to offer the public a more thorough picture of the LeGrand family. I disagree with such reasoning and conclusion.

"Special provisions relating to persons employed by, or connected with, news media

"(a) Definitions. As used in this section, the following definitions shall apply:

"(1) 'Newspaper' shall mean a paper that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at United States post-office as second-class matter.

"(2) 'Magazine' shall mean a publication containing news which is published and distributed periodically, and has done so for at least one year, has a paid circulation and has been entered at a United States post-office as second-class matter.

"(3) 'News agency' shall mean a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.

"(4) 'Press association' shall mean an association of newspapers and/or magazines formed to gather and distribute news to its members.

"(5) 'Wire service' shall mean a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.

"(6) 'Professional journalist' shall mean one who, for gain or livelihood, is engaged in gathering, preparing or editing of news for a newspaper, magazine, news agency, press association or wire service.

"(7) 'Newscaster' shall mean a person who, for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission.

"(8) 'News' shall mean written, oral or pictorial information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.

"(b) Exemption of professional journalists and newscasters from contempt.

"Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network, shall be adjudged in contempt by any court, the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers 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 newspaper, magazine, or for broadcast by a radio or television transmission station or network, by which he is professionally employed or otherwise associated in a news gathering capacity."

These provisions evince a clear legislative design to benefit "professional journalists" and "newscasters" only. They should not by judicial fiat and strained interpretation be deemed to encompass those engaged in a different field of writing and research.

Moreover, beyond peradventure the information obtained by appellant was of a nonconfidential nature. In his supporting affidavit on the motion to quash the subpoena, appellant stated that he had an understanding with Holman that he "would not reveal the information to anyone prior to its

publication in the book." Yet, Holman had already testified before several Grand Juries and one trial court regarding the murders which are the subject of this indictment. Such loquacity undermines any claim of confidentiality. In addition, the information was imparted for the express purpose of appearing in appellant's forthcoming book. This was not an agreement of confidentiality; it was, at best, an agreement to postpone divulgence of the information until the book was published. Hence, absent any proof of a "cloak of confidentiality", the "shield law" could not inure to appellant's benefit in any event. (See Matter of Wolf v. People, 69 Misc.2d 256, 329 N.Y.S.2d 291, affd. 39 A.D.2d 864, 333 N.Y.S.2d 299; Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393.)

THE CONSTITUTIONAL CLAIMS

Appellant next contends that, even if outside the ambit of section 79-h of the Civil Rights Law, his information is shielded by the First Amendment to the United States Constitution and section 8 of article I of the New York State Constitution. The latter reads, in part:

"Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press."

In this regard, appellant does not claim an absolute privilege from disclosure of his information. He only claims that before he is compelled to do so, the court should be sure that there is a real reason to intrude on his "free press" interest. Therefore, proof should be taken to assure that the matter being sought is relevant and material to an issue of fact necessary for the defense of the case and that substantially...