People v. Rand
| Decision Date | 08 September 1987 |
| Citation | 136 Misc.2d 1034,519 N.Y.S.2d 606 |
| Parties | PEOPLE of the State of New York v. Andre RAND, Defendant. |
| Court | New York Supreme Court |
William L. Murphy, Dist. Atty., Richmond County (John Loughrey, and Karen McGee, Asst. Dist. Attys., of counsel), for the People.
Coudert Brothers, New York City (Michael J. Calvey, Kevin W. Goering and Henry J. Uscinski), for New York News, Inc. and Heidi Evans.
Following his arraignment in Criminal Court on August 4, 1987 on charges of having kidnapped 12-year-old Jennifer Schweiger, who mysteriously disappeared from the vicinity of her Staten Island home on July 9, 1987, the defendant herein, Andre Rand, was committed to the psychiatric ward of Kings County Hospital for an examination to determine his competence to stand trial (CPL art. 730). As has become all too familiar, Jennifer Schweiger's body was discovered on August 12, 1987, in a shallow grave approximately 150 yards from the location of a campsite on the grounds of the Staten Island Developmental Center at Willowbrook which was allegedly used by Andre Rand. Subsequently, and on August 16, 1987, a reporter from the Daily News, Heidi Evans, was able to gain access to the defendant by posing as a friend, and thereafter proceeded to interview him in a visitors' room at Kings County Hospital for approximately one hour. The resulting article, which contains several quotes from Rand, appeared in the Daily News on August 17, 1987.
In light of these developments, and as part of a Grand Jury investigation into the death of Jennifer Schweiger, a subpoena duces tecum was served upon Ms. Evans on August 20, 1987 demanding that she appear before the Grand Jury as a witness in connection with the proceedings concerning Andre Rand, and that she bring with her "all notes and memoranda pertaining to the interview with Andre Rand." The Daily News and Ms. Evans subsequently moved to quash this subpoena, contending that the materials and the information sought were protected from disclosure by the "qualified privilege" accorded to newspersons under the "free speech, free press" guarantees of the First Amendment and Article I, § 8 of the New York State Constitution. In addition, petitioners maintain, inter alia, that compelling the disclosure of information obtained by a reporter in the course of news gathering will have a "chilling effect" upon his or her ability to function as a reporter and, therefore, upon the free flow of information to the general public.
The motion is denied.
In requesting that this court quash the Grand Jury subpoena duces tecum, the petitioners have wisely eschewed reliance upon the "absolute privilege" accorded to reporters by New York's Shield Law (Civil Rights Law, § 79-h), as it is well established that in order for the foregoing to apply, the information in question must have been imparted to the newsperson under a cloak of confidentiality, i.e., upon an understanding, express or implied, that either the information or its sources, or both, would not be revealed (Matter of Knight-Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595, 511 N.E.2d 1116; People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310). Clearly, no such showing is possible here.
Turning to the claimed "qualified privilege" allegedly derived from the First Amendment and Article I, § 8 of the New York State Constitution, we find that the confidentiality requirements of, e.g., the New York Shield Law are wholly inapplicable, and that the cases discussing the "qualified privilege" have permitted its invocation in otherwise proper circumstances notwithstanding the absence of a claim of confidentiality (see, e.g., People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310, supra ). Although the precise contours of this constitutional privilege have yet to be fully defined, especially in the context of grand jury proceedings, it is clear from the concurring opinion of Mr. Justice Powell in Branzburg v. Hayes, 408 U.S. 665, 710, 92 S.Ct. 2646, 2671, 33 L.Ed.2d 626, that in adjudicating a claim of the constitutional privilege against compelled disclosure there must be a balance struck between the "freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct," and that the proper balancing of these "vital constitutional and societal interests" can best be achieved on a case-by-case basis (Branzburg v. Hayes, supra, p. 710, 92 S.Ct. at 2671).
While Branzburg itself dealt specifically with the question of the scope of the "qualified privilege" in the context of a pending Grand Jury proceeding, later cases which have discussed and elaborated upon the principle have done so in a variety of factual circumstances, including both civil and criminal matters (see, e.g., United States v. Burke, 700 F.2d 70 (2d Cir.) cert. den. 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85; Gulliver's Periodicals v. Levy Circulating Co., 455 F.Supp. 1197 (N.D.Ill.)). From these and other cases, there evolved a three-pronged balancing test which, while it has been variously phrased, has nearly always contained the same three elements, (1) a showing that the information requested is "highly relevant" to the matter in issue; (2) that it is "necessary" to the position of the party requesting it; and (3) that it is not obtainable from any alternate source (see, e.g., People v. Korkala, 99 A.D.2d 161, 167, 472 N.Y.S.2d 310, supra; United States v. Burke, supra, pp. 76-77). As applied in New York, however, at least in the context of a pending Grand Jury investigation, it would appear that the so-called three-pronged test must also be reconciled with the presumption of validity which has traditionally been accorded to Grand Jury subpoenas in this State (see, Virag v. Hynes, 54 N.Y.2d 437, 444, 446 N.Y.S.2d 196, 430 N.E.2d 1249).
Thus, the Third Department in Matter of Knight-Ridder Broadcasting v. Greenberg, 119 A.D.2d 68, 72, 505 N.Y.S.2d 368, rejected the petitioner's claimed First Amendment privilege against compelled disclosure in the form of a Grand Jury subpoena by observing that "[w]hatever qualified privilege may exist under the First Amendment with regard to the material sought does not protect such material here, since the taped interview [with a murder suspect]presumably contains relevant information * * *...
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People v. Doe
...an unimpeded Grand Jury investigation of legitimate subjects of inquiry. O'Neill v. Oakgrove Construction, Inc., supra; People v. Rand, 136 Misc.2d 1034, 519 N.Y.S.2d 606 (Sup.Ct. Richmond County, It is significant that what is sought for Grand Jury purposes is merely testimony and not the ......