People v. Troiano

• Citation: 127 Misc.2d 738,486 N.Y.S.2d 991
• Parties: , 11 Media L. Rep. 1896 PEOPLE of the State of New York v. James TROIANO, Defendant.
• Decision Date: 13 March 1985
• Court: New York County Court

Page 991

486 N.Y.S.2d 991

127 Misc.2d 738, 11 Media L. Rep. 1896

PEOPLE of the State of New York v. James TROIANO, Defendant.

Suffolk County Court.

March 13, 1985.

Patrick Henry, Suffolk County Dist. Atty., Riverhead, for the People; William Keahon, Riverhead, of counsel.

Eric Naiburg, Hauppauge, for defendant.

Lankenau, Kovner & Bickford, New York City, for movants; Harriette K. Dorsen, New York City, of counsel.

JOHN COPERTINO, Judge.

Robert Wallace and David Breskin, the Managing Editor and a reporter, respectively, of Rolling Stone Magazine move to quash three subpoenas duces tecum served upon them by the defendant in this action. These subpoenas seek disclosure of notes, tapes and records made by the reporter in connection with an article published in this magazine on November 22, 1984, entitled "Kids in the Dark."

Defendant, James Troiano, was indicted for the murder of Gary Lauwers, who was beaten and stabbed to death on or about June 17, 1984. Mr. Breskin as the reporter investigating the incident interviewed many teenagers in preparation of the article, including friends and classmates of the defendant and the victim. The defendant's attorney asserts that the information sought in the three subpoenas is needed to conduct a "proper and effective cross-examination of prosecution witnesses," and to, "enable the defendant to subpoena persons For the purpose of discussion, this court will refer to the three subpoenas as subpoenas "A", "B" and "C". Subpoena "A" specifically seeks, "names and addresses of any and all persons interviewed in connection and in preparation for the article ... who were not directly or indirectly identified in said article," and, "any and all audio recordings, notes or memorandum made in connection with ... the above-referenced case." Subpoena "B" requests the "names and addresses of those persons identified in the article ... as 'teen dust head', 'peace-nick girl,' 'softhearted girl,' and 'boy at wake'." It also asks for "any and all audio recordings ... and all notes and memorandum" made during the interviews with the four individuals. Finally, subpoena "C" requests the addresses of nine individuals whose true identities were published in the article as well as "any and all audio recordings ... and all notes or memorandum" made during the interviews with the nine individuals.

whose testimony would be vital to the defendant's direct case."

The movants assert that the materials sought by the three subpoenas are privileged and protected under the New York Civil Rights Law, § 79-h, the First Amendment of the United States Constitution, and the New York Constitution. Mr. Breskin asserts that the interviews were obtained upon agreements of confidentiality. As to subpoena "A", Mr. Breskin states that these interviews were "off the record," meaning that, "I would use no part of the information in the Article but use it solely for my own background and understanding." As to subpoena "B", Mr. Breskin states that these interviews were "not for attribution," meaning that "the information may be used without identifying the source of the information." As to subpoena "C", Mr. Breskin claims that these interviews were conducted, "on the strict and specific agreement that their interviews would only be used for Rolling Stone Magazine." The reporter states:

Thus, as to these interviews, while I had permission of these people to use their names and the information they gave me in the article for Rolling Stone, I agreed that I would not use their names or the information for any other purpose and would not divulge it under any circumstances except as limited in the Article. Part of the commitment which I gave was that the unused portions of the interviews were to be kept strictly confidential....

This court will examine two issues: (1) whether the information sought comes within the protection of the Shield Law; and (2) if the information is not protected by the Shield Law, is it protected by the constitutions of the United States and the State of New York.

THE SHIELD LAW

The movants first contend that inasmuch as the material sought comes within the protection of Civil Rights Law, § 79-h, commonly referred to as the Shield Law, the subpoenas should be quashed.

The Shield Law provides that a news reporter shall not be held in contempt by any court 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." (Civil Rights Law, § 79-h[b] ).

To successfully raise a claim of privilege under the Shield Law, the information must be imparted to the reporter under a "cloak of confidentiality," and the information or sources must be obtained in the course of gathering news for publication. (People v. Wolf, 69 Misc.2d 256, 329 N.Y.S.2d 291, affd. 39 A.D.2d 864, 333 N.Y.S.2d 299; People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252). In the case under consideration, there is no dispute that Mr. Breskin obtained the information requested by the defendant in the course of preparing the article "Kids in the Dark." The question As to subpoena "A", this court finds that there was an agreement of confidentiality. Both the reporter and the parties interviewed agreed that neither the information nor the source would be identified in the article. The information sought by subpoena "A" was to be kept secret and used only by the reporter for "background and understanding."

that remains, therefore, is whether the information requested was imparted under a "cloak of confidentiality."

As to subpoena "B", this court also finds that there was an agreement of confidentiality. The individuals listed in subpoena "B" and Mr. Breskin had an agreement that the information could be divulged but that the identities of the sources would be kept secret. Pseudonyms such as "teen dust head" and "softhearted girl" were therefore used to keep the sources confidential.

As to subpoena "C", however, this court finds there was no recognizable agreement of confidentiality. The identities of the individuals named in subpoena "C" and the information they imparted, or at least some of it, were published in the article. If all the information imparted was in fact published, then there is nothing to protect. "The statute ... cannot be used as a shield to protect that which has already been exposed to view." (People v. Wolf, supra, 39 A.D.2d 864, 333 N.Y.S.2d 299.) If all of what was imparted was not published, then it should be noted that it cannot be ascertained that there was an agreement between the parties as to what would be published and what would be kept secret. It appears that it was in Mr. Breskin's discretion to decide what would and would not be published. As such, the mutuality of understanding necessary for an agreement of confidentiality was lacking. (See,People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310; Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442.)

Because the information in subpoenas "A" and "B" was imparted under a "cloak of confidentiality" and because it was obtained in the course of news gathering, the materials sought under these two subpoenas are protected by the Shield Law. While the language that follows was made in the context of a reporter's refusal before a grand jury to divulge the identity of his source, it emphasizes the attitude of our own Court of Appeals in this area: "Protection from contempt for refusal to disclose a source is not merely a privilege granted to the press by the Legislature, but is essential to the type of freedom of expression traditionally expected in this State and should be recognized as a right guaranteed by the State Constitution." (Matter of Beach v. Shanley, 62 N.Y.2d 241, 256, 476 N.Y.S.2d 765, 465 N.E.2d 304 [Wachtler, J., concurring] ). The court also notes that there has been no proof of a waiver of the privilege afforded by the Shield Law. (See, Andrews v. Andreoli, supra, 92 Misc.2d 410, 400 N.Y.S.2d 442.) The court finds with respect to the materials requested in subpoena "C" that because there was no recognizable agreement of confidentiality, the subpoenaed materials do not come within the protection of the statute.

Although the materials sought in subpoenas "A" and "B" are protected by the Shield Law, this court must still determine whether there is an overriding constitutional interest that would entitle the defendant to the information. In appropriate circumstances, a reporter's privilege under the Shield Law may yield to the defendant's Sixth Amendment rights. (See, People v. Iannaccone, 112 Misc.2d 1057, 447 N.Y.S.2d 996; Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. den. sub nom. New York Times Co. v. New Jersey, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670.) The Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to be confronted with witnesses against him, including the right of cross-examination; and these rights must be accorded to a defendant in the state courts as well. (Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct....