State v. Boiardo

• Decision Date: 05 May 1980
• Parties: , 6 Media L. Rep. 1195 STATE of New Jersey, Plaintiff-Respondent, v. Ruggerio BOIARDO, Defendant, and Anthony DeVingo, Andrew Gerardo, James Vito Montemarano, and Angelo Carmen Sica, Defendants-Respondents. In the Matter of the Application of Robin GOLDSTEIN re Subpoena. (Robin Goldstein, Appellant).
• Court: New Jersey Supreme Court

Page 446

82 N.J. 446

414 A.2d 14, 6 Media L. Rep. 1195

STATE of New Jersey, Plaintiff-Respondent, v. Ruggerio BOIARDO, Defendant and Anthony DeVingo, Andrew Gerardo, James Vito Montemarano, and Angelo Carmen Sica, Defendants-Respondents In the Matter of the Application of Robin GOLDSTEIN re Subpoena (Robin Goldstein, Appellant).

Supreme Court of New Jersey.

Submitted April 25, 1980.

Decided May 5, 1980.

Frederick W. Rose, Newark, and Christine L. Miniman, submitted a brief on behalf of appellant (Young, Rose & Millspaugh, Newark, attorneys).

Anthony J. Parrillo, Deputy Atty. Gen., submitted a brief on behalf of plaintiff-respondent State of New Jersey (John J. Degnan, Atty. Gen., attorney; G. Michael Brown, Asst. Atty. Gen., of counsel).

Miles Feinstein, Passaic, submitted a joint brief on behalf of defendants- respondents (Miles Feinstein, Passaic, attorney for Anthony DeVingo; John V. Vantuno, Bloomfield, attorney for Andrew Gerardo; John P. Doran, Jersey City, attorney for James Vito Montemarano; and Joseph A. Ferrante, Jr., Ridgewood, attorney for Angelo Carmen Sica).

Thomas J. Cafferty and A. F. McGimpsey, Jr., North Brunswick, submitted a brief on behalf of amicus curiae New Jersey Press Ass'n (Seiffert, Frisch, McGimpsey & Cafferty, North Brunswick, attorneys).

The opinion of the court was delivered by

WILENTZ, C. J.

We are asked in this case to review the order of a trial court directing Robin Goldstein, a newspaper reporter, to produce a letter for in camera inspection sent to her by Patrick J. Pizuto, a prospective prosecution witness in a criminal trial. Seeking to use the letter to impeach Pizuto's testimony, four defendants at the trial applied for judicial enforcement of a subpoena duces tecum served on Goldstein on March 31, 1980. The reporter claimed the protection of the newsperson's privilege, Evid.R. 27, ¹ and moved to quash the subpoena on April 3. After a hearing on April 14, the trial court ordered production of the letter for in camera inspection under the authority of section 4 of Chapter 479, Laws of 1979, N.J.S.A. 2A:84A-21.4, the new shield law. After the Appellate Division denied review, we granted Goldstein's leave to appeal and stayed the trial court's order. We now hold that defendants have failed to satisfy the requirements for that production order under the new law. Specifically they have not demonstrated, by a preponderance of the evidence, the non-availability of less intrusive sources which provide information substantially similar to that contained in the letter. Accordingly, we reverse the determination of the trial court requiring production pursuant to N.J.S.A. 2A:84A-21.4 of the letter sent to Ms. Goldstein. Such reversal is without prejudice to further application by defendants to secure the letter, with full opportunity to establish the absence of less intrusive sources.

Although the issue presented by Ms. Goldstein's appeal whether a reporter is required to turn over information for in camera inspection by a trial judge in a criminal case has been addressed and resolved by this Court in In re Myron Farber, 78 N.J. 259, 394 A.2d 330 (1978) (hereinafter Farber ), our holding there must be supplemented, since subsequent to Farber the Legislature amended the shield law then in effect, L.1960, c. 52, p. 458, § 21, amended L.1977, c. 253, §§ 1 and 2 (N.J.S.A. 2A:84A-21 and 21a), codifying the two-step structure of the Farber procedural guidelines. 78 N.J. at 276-77, 394 A.2d 330. We conclude that the new shield law embodies those protections of reporters contained in the prior law as it was interpreted in Farber, adding only the requirement that a defendant seeking information in a newsperson's possession must prove that, on balance, the value of the particular information to a fair trial outweighs the importance to a free press of shielding that information from disclosure. However, a resolution of that balance in this case is unnecessary at this point, because defendants have failed to show that the information sought is not available through a less intrusive source as is required by the new law. ² A careful review of the facts before us will reveal the deficiencies in the defendants' case, when measured against the procedural burdens established by the new law.

I.

The defendants ³ who seek production and eventual disclosure of the letter in Ms. Goldstein's possession are presently on trial for loan sharking, bookmaking, extortion, armed robbery, threatening to kill, obtaining money by false pretenses, and conspiracy to commit these and other offenses. Defendant DeVingo has also been indicted for murder. ⁴ These charges are apparently based to a significant extent on evidence obtained through the cooperation of Pizuto, an alleged former confederate of defendants and the author of the letter in Goldstein's possession. Although the State has not definitely indicated whether it will call Pizuto as a witness, he is clearly a potential source of relevant and material testimony. The record indicates that he may possess extensive knowledge of the criminal operations of defendants. He has claimed that for many months he covertly recorded incriminating conversations between himself and defendants. He has also stated he was an eye witness to the murder allegedly committed by defendant DeVingo.

The particular material sought by defendants is a letter sent by Pizuto to Goldstein, a reporter with the Daily Register of Monmouth County, who has been covering the story involving defendants for over two years. Defendants claim that the letter probably contains material that would aid in the impeachment of Pizuto on cross-examination after he has testified on the State's behalf. Specifically, they claim that there is a reasonable probability that the letter describes an alleged "deal" between Pizuto and the State as well as Pizuto's subsequent dissatisfaction with the State for reneging on that deal. This information, defendants argue, is probably inconsistent with testimony Pizuto gave under oath when entering a plea of guilty to an unrelated murder pursuant to a plea bargain in September 1978. In those proceedings, Pizuto stated on the record that in exchange for his cooperation the State had promised that he would receive a sentence of no more than 15 years in prison. He assured the court that no other promise was made. ⁵ He further asserted that his cooperation and his determination to tell all that he knew had nothing to do with any promise by the State. Instead, he explained that his willingness to help the State was derived from his decision to become a new person, a new man; to live a different life.

Based on information defendants have received from Pizuto himself, they contend that the information contained in the letter will prove to be clearly inconsistent with Pizuto's sworn testimony about his motivations for cooperating with the State, and that such inconsistency will have a profound effect on Pizuto's credibility as a witness for the State. It appears that after Pizuto's plea was entered for the unrelated murder charge, he was secretly "relocated" by federal authorities (under the federal witness protection program) in order to ensure his safety between the entry of his guilty plea and his ultimate cooperation as a prosecution witness.

One month before the trial against defendants was to begin Pizuto reportedly changed his mind, and decided that he would not cooperate with the State. Stories appeared in the media attributing statements to Pizuto that the State had "reneged" on its "deal" and that he was going to "tell all." These statements implied that he would reveal some embarrassing information about the way the State had handled his case. The stories provoked speculation about Pizuto's continued willingness to testify and the State's continued interest in using him as a witness. This speculation has yet to be resolved.

Pizuto's decision to terminate cooperation with the State appears to have resulted from the State's suggestion to the sentencing judge in the unrelated murder case that Pizuto receive a fairly substantial sentence of imprisonment. He appears to have viewed the suggestion as a breach of the agreement the State made with him. According to Pizuto he was assured that he would serve little or no time in jail. He claimed this breach was an example of the State's allegedly unfair and improper conduct in this case.

Pizuto's claims were essentially repeated by his attorney at the sentencing proceedings. Pizuto and his wife sent letters to the sentencing judge; they presumably contained information about the same matters. The judge imposed a sentence of 8 to 12 years imprisonment, well within the bargained term of no more than 15 years imprisonment that Pizuto had described in sworn testimony. Pizuto is now incarcerated in the Passaic County Jail, where he has been since March 6, when his bail was revoked on the unrelated murder charge.

Ms. Goldstein's connection with defendants' case, and with Pizuto himself, apparently developed in the course of her coverage of the trial since September 1978. Her coverage enabled her to gain Pizuto's confidence, and she wrote numerous stories in which Pizuto was quoted, sometimes directly. Defendant Montemarano was aware of her interest in the case as well as her ability to get information from Pizuto because of the trust and confidence Pizuto had in her. Montemarano was the only witness called by defendants to testify in the proceedings from which Goldstein appeals, in which he described her coverage of the case and also recounted numerous telephone conversations he had with Pizuto. During Montemarano's testimony, ⁶ he revealed that approximately one year before defendants' trial began, while Pizuto was still out on bail, Pizuto advised him on the telephone that "one of these days" he was going to send letters to the press about the conduct of the Attorney General's office toward him as well...