People v. Lyons
| Decision Date | 18 July 1991 |
| Citation | 151 Misc.2d 718,574 N.Y.S.2d 126 |
| Parties | , 19 Media L. Rep. 1151 PEOPLE of the State of New York v. Barbara A. LYONS and Mary A. Zuppelli, Defendants. |
| Court | New York City Court |
Kevin M. Dillion, Dist. Atty. (Suzanne M. Garvey, Asst. Dist. Atty., of counsel), Buffalo, for the People.
Hodgson, Russ, Andrews, Woods & Goodyear (Paul I. Perlman, of counsel), Buffalo, for Buffalo Broadcasting Co., Inc.
The moving party, BUFFALO BROADCASTING CO., INC., has moved to quash a subpoena duces tecum which was served upon them by the Erie County District Attorney's Office on May 17, 1991 requesting the production of the "videotape of May 15, 1991 sting operation by the Buffalo Police Vice Department."
On May 15, 1991, WIVB-TV, Channel 4 in Buffalo, New York filmed certain aspects of a Buffalo Police Department sting operation involving an escort service as part of the station's undercover investigative series. The investigation of the escort service was conducted and reported by Richard Pfeiffer, a professional journalist employed by WIVB. The report was aired on the 11 p.m. news on WIVB on May 15, 1991.
As a result of the sting operation, two women have been charged with prostitution pursuant to Penal Law § 230.00. During their investigation of the incident, the Erie County District Attorney's Office served a subpoena duces tecum upon WIVB.
In response, BUFFALO BROADCASTING CO., INC., the owner of WIVB, has moved to quash the subpoena duces tecum pursuant to New York Civil Rights Law § 79-h(b, c), the "Shield Law."
Aside from the broadcast tape of May 15, 1991 (which WIVB is willing to produce), WIVB has one videotape containing outtakes. "Outtakes" are those portions of film which are recorded as part of the journalist's investigation but which are not ultimately broadcasted on the air. This videotape of "outtakes" runs ten minutes and thirty seconds.
The movant states that the videotape contains film of undercover officers conducting parts of the sting operation. WIVB reporter, Richard Pfeiffer, promised the undercover officers confidentiality in exchange for their agreement to be filmed. If film of the undercover officers was to be shown, Pfeiffer promised to mask their identities.
The moving party asserts the Shield Law in support of its motion to quash the subpoena duces tecum. The Shield Law provides absolute immunity to a newsperson who refuses to disclose unpublished confidential news information. (Civil Rights Law § 79-h[b]. In addition, the statute provides a qualified privilege to a newsperson who refuses to disclose unpublished non-confidential news information. (Civil Rights Law § 79-h[c].
In order to ascertain which portions of the tape, if any, would be protected from disclosure by the Shield Law, the Court viewed in camera the entire videotape that is the subject of this proceeding. The first four minutes and thirty seconds of the tape contains film of undercover officers conducting parts of the sting operation and taking two suspects into custody. The next two minutes and twenty seconds of the videotape contains an interview with an undercover police officer. The next twenty-nine seconds of the tape contains a picture of the husband of an escort service owner together with one of the escorts. The final two minutes and eleven seconds of the tape shows scenery shots of downtown Buffalo.
At the hearing, counsel for BUFFALO BROADCASTING CO., INC. called Detective Sugg to testify. He is the undercover officer shown on the videotape during the sting operation and he was also interviewed by Pfeiffer. Upon taking the stand, Detective Sugg waived the confidentiality that was afforded to him at the time the report was filmed. At this point, the People claimed that none of the information regarding the sting operation contained in the outtake videotape was privileged. Counsel for the movant opposed this argument and claimed that the information would now be deemed non-confidential and would be subject to the qualified protection contained in Civil Rights Law § 79-h(c).
The Court then permitted counsel for the moving party to examine Detective Sugg pursuant to the three-pronged test found in Civil Rights Law § 79-h(c) with reference to the confidential portion of the videotape as well as the non-confidential portion. The officer was permitted to view the confidential portion of the videotape in camera.
Thereafter, Detective Sugg testified that he could not state that the information in the outtake videotape is highly material and relevant, nor that it is critical or necessary to the maintenance of the People's case. In addition, Detective Sugg stated that he would voluntarily give the People the information that was necessary to maintain their case.
The question presented is whether a waiver of confidentiality of material protected under New York Civil Rights Law § 79-h(b) causes that previously confidential material to become non-confidential material pursuant to § 79-h(c) of said law and thereby subject to the three-pronged test required by that statute?
The People argue that when Detective Sugg waived the confidentiality as to the first seven minutes and fifty seconds of the videotape in order to remove that portion's absolute protection under Civil Rights Law § 79-h(b), this information became wholly unprotected and subject to disclosure. Therefore, the People claim that the subpoena must not be quashed with respect to the confidential portion of the tape because the absolute privilege was lost when the police officer waived confidentiality.
The moving party opposes this argument and responds that once Detective Sugg waived confidentiality, the qualified privilege of Civil Rights Law § 79-h(c) then applies. In order to defeat this qualified privilege, the People must make a clear and specific showing that the news is highly material and relevant; is critical or necessary to the maintenance of the People's claim, defense or proof of a material issue; and is not obtainable from any alternative source. They argue that the People have failed to meet this burden and the subpoena duces tecum should be quashed.
This issue appears to be a case of first impression since the amendment of the Shield Law in 1990.
The history of the Shield Law can be traced to Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), where the Supreme Court concluded that the First Amendment to the Federal Constitution does not accord a newsperson a privilege against appearing before a grand jury and answering questions as to either the identity of their news sources or information they have received in confidence. Nevertheless, the Court made it clear that there is merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards.
New York's "Shield Law" was first enacted by the State Legislature in 1970 as Civil Rights Law § 79-h. The law was amended in 1975 (L.1975 c. 316) and again in 1981 (L.1981 c. 468). However, the scope of the Shield Law remained unclear and was subject to various judicial interpretations over the years.
One interpretation of the law prior to the 1990 amendment is found in Knight-Ridder Broadcasting, Inc. v. Greenberg, 119 A.D.2d 68, 505 N.Y.S.2d 368, mod. on other grounds 70 N.Y.2d 151, 518 N.Y.S.2d 595, 511 N.E.2d 1116 (1987) where the Court held that the Shield Law only protected news material which had been imparted to a newsreporter under a cloak of confidentiality.
In response to the confusion over the extent of the privilege, the legislature enacted the current law which now defines two separate categories of the privilege: absolute protection for confidential news (Civil Rights Law § 79-h[b], and qualified protection for non-confidential news (Civil Rights Law § 79-h[c].
The absolute privilege applies to unpublished news that is received in confidence in the course of gathering or obtaining news for publication. In such a case, the newsperson shall not be held in contempt by a Court:
[F]or refusing or failing to disclose any news obtained or...
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