Sullivan, Matter of

• Decision Date: 08 November 1995
• Citation: 167 Misc.2d 534,635 N.Y.S.2d 437
• Court: New York Supreme Court
• Parties: . Jonathan Hurley, Defendant. Supreme Court, Queens County

Page 437

635 N.Y.S.2d 437

167 Misc.2d 534

In the Matter of Subpoena to Timothy SULLIVAN of Courtroom

Television Network, Concerning The People of the

State of New York v. Jonathan Hurley, Defendant.

Supreme Court, Queens County.

Nov. 8, 1995.

Cahill Gordon & Reindel (Susan Buckley and Anne B. Carroll, of counsel), New York City, for Courtroom Television Network, movant.

Edward Zaloba, Hempstead, for defendant.

JOSEPH G. GOLIA, Justice.

On April 3, 1994, two teenage boys and a young girl were shot at a housing project located in the Far Rockaway section of Queens County, an area within the confines of the 101st police precinct. Six days later, on April 9, 1994, Mr. Jonathan Hurley was contacted at his home by police detectives, Sheldon Howard and Edward Henson. As a result of this encounter, Mr. Hurley went with the detectives to the 101st precinct for questioning. There, Mr. Hurley made a statement which implicated himself in the shootings.

Immediately after the interrogation, Mr. Hurley led the detectives to the place where he had disposed of the gun used in the shootings.

In the course of the criminal proceeding, Mr. Hurley was granted a combined Huntley-Mapp hearing. At issue is whether the police had afforded him all of his constitutional rights in the course of obtaining the statement and the subsequent recovery of the physical items.

Some of these events were the subject of a television report entitled The System ¹ which was produced by Courtroom Television Network (Court TV) and its correspondent, Timothy Sullivan. In preparation for the hearing, the defendant obtained a court ordered subpoena and served it upon Mr. Sullivan. The subpoena required that Mr. Sullivan appear at the suppression hearing for the purpose of testifying as to his personal knowledge of the events and bring with him his notes, records, and videotape out-takes taken on April 9, 1994, concerning the defendant.

Court TV, on behalf of Mr. Sullivan, moved to quash the subpoena on the grounds that the information sought is protected from disclosure by the First Amendment to the United States Constitution; Article I, Section 8, of the New York Constitution; and the New York Shield Law, N.Y.Civil Rights Law § 79-h(c).

A hearing pursuant to the Shield Law was commenced on February 9, 1995, and continued on July 18, 1995 at which the defendant presented three witnesses: Detectives Howard and Henson, and Mr. Sullivan. The movant, Court TV, did not present any witnesses. At the conclusion of the hearing, both parties were afforded the opportunity to submit memoranda of law which were received on August 9, 1995, August 14, 1995 and August 25, 1995.

Findings of Fact

The facts and circumstances that are relevant to the narrow issues addressed by this hearing are outlined below.

I find that there is no videotape in existence, unpublished or otherwise, of Mr. Hurley arriving at the 101st precinct on April 9, 1995, whether in handcuffs, as he alleges, or not.

Furthermore, I find that Court TV journalist, Timothy Sullivan, was present in the interrogation room during some portions of the questioning that resulted in the statement which is at issue. In whatever regard that Detective Henson's testimony is contrary to this fact, it is discounted.

Mr. Sullivan took notes during the course of the interrogation, but did not videotape any portion of those proceedings. Accordingly, that portion of the underlying subpoena which demands the production of videotape out-takes is denied inasmuch as there are no relevant out-takes to be produced.

Notwithstanding, however, the written notes and personal observations of Mr. Sullivan are clearly relevant to the issues at hand, and therefore require a careful examination of the applicable laws to determine their disposition.

Conclusions of Law

In 1970, New York first adopted the Shield Law in order to protect reporters from contempt charges for refusing or failing to reveal information or sources thereof obtained in the course of newsgathering ². In signing the legislation, Governor Rockefeller stated: "Freedom of the press is one of the foundations upon which our form of government is based.... [T]he threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information." 1970 NY Legis.Ann., at 508.

For the next few years, courts interpreted the statute as providing only a qualified privilege and found an implicit requirement of confidentiality of sources and materials. See MATTER OF WBAI-FM, 68 MISC.2D 355, 326 N.Y.S.2D 434 (1971), AFF'D SUB NOM. MATTER OF WBAI-FM V. PROSKIN, 42 A.D.2D 5, 344 N.Y.S.2D 393 (1973); PEOPLE V. WOLF, 69 MISC.2D 256, 329 N.Y.S.2D 291 (1972), AFF'D 39 A.D.2D 864, 333 N.Y.S.2D 299 (1972). EVEN THOUGH THE STATUTE WAS AMENDED IN BOTH 1975 AND 1981 TO FURTHER PROTECT JOURNALISTS FROM REQUESTS FOR INFORMATION OR DISCLOSURE OF SOURCES , SOME LOWER COURTS STILL UPHELD THE CONFIDENTIALITY REQUIREMENT. SEE PEOPLE V. KORKALA, 121 MISC.2D 291, 467 N.Y.S.2D 517R (1983), AFF'D AS MODIFIED 99 A.D.2D 161, 472 N.Y.S.2D 310R (1984); PEOPLE V. LEGRAND, 67 A.D.2D 446, 415 N.Y.S.2D 252R (1979). HOWEVER, THE COURT OF APPEALS' DECISION IN MATTER OF BEACH V. SHANLEY, 62 N.Y.2D 241, 476 N.Y.S.2D 765, 465 N.E.2D 304R (1984), OVERRULED THIS INTERPRETATION. THE BEACHR COURT HELD THAT THE AMENDED SHIELD LAW PROVIDED "A BROAD PROTECTION TO JOURNALISTS WITHOUT ANY QUALIFYING LANGUAGE." SUPRA AT 251, 476 N.Y.S.2D 765, 465 N.E.2D 304.³R

Despite the unqualified protection afforded to reporters in Matter of Beach, the Court of Appeals in Matter of Knight-Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595, 511 N.E.2d 1116 (1987), reinstated the "cloak of confidentiality" requirement as a prerequisite for any application of the Shield Law. Supra at 156, 518 N.Y.S.2d 595, 511 N.E.2d 1116. The decision thus left unprotected any journalistic product obtained from nonconfidential information or sources.

However, eight months later, in a subsequent decision, O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277 (1988), our high court held that limited protection from disclosure of nonconfidential news material should be afforded to reporters. The O'Neill Court reasoned that this qualified privilege existed simultaneously under the First Amendment of the Federal Constitution and Article I, § 8 of the New York Constitution. Accordingly that court adopted a tripartite balancing test to determine whether a litigant can overcome the qualified privilege. Supra at 524-27, 528 N.Y.S.2d 1, 523 N.E.2d 277.

In 1990, the three-part test adopted in O'Neill was codified by the addition of a new section to the Shield Law ⁴. Section (c) of Civil Rights Law 79-h now requires that a litigant seeking testimony from a reporter about his non-confidential newsgathering activities, or non-broadcast resource materials, must make a clear and specific showing that the information is: (1) highly material and relevant; and (2) critical or necessary to the litigant's claim or defense; and (3) not obtainable from any alternative source.

In the case at bar, there is no dispute concerning the status of Timothy Sullivan as a professional journalist ⁵, or the fact that the information and materials sought by the defense qualify as unpublished news ⁶. Thus, Court TV and Mr. Sullivan are entitled to assert the newsgathering privilege as grounds for quashing the subpoena.

Moreover, it is clear that Mr. Sullivan had no understanding or expectation of confidentiality with either Mr. Hurley or the police detectives regarding the viewing of the interrogation. Consequently, there is no absolute privilege which protects the movant's materials, see Civil Rights Law § 79-h(b), and therefore any protection that might be afforded to the journalistic material can only be of a qualified nature. See O'Neill, supra at 527-529, 528 N.Y.S.2d 1, 523 N.E.2d 277; Civil Rights Law § 79-h(c). Nevertheless, the burden remains on the defendant to overcome this qualified privilege by satisfying the tripartite balancing test adopted by the Court of Appeals in O'Neill and codified by subdivision (c) of Civil Rights Law § 79-h.

Hence, the only issue for me to determine is whether the defendant has made a clear and specific showing that the material sought is: (1) highly material and relevant; (2) critical or necessary to the maintenance of defendant's claim or defense; and (3) not obtainable from any alternative source.

While determining the primary issue in this case, I am confronted with two competing interests: the interest in maintaining the newsgathering privilege of the press and the evidentiary needs of a criminal defendant. In reconciling these two competing interests, each must be given their full scope.

The newsgathering privilege reflects the vital and constitutionally protected functioning of an independent and vigorous press. Most importantly, "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972). However, when, as herein, the newsgatherers choose to be participants in a story, beyond that as witnesses and reporters, then this protection may be eradicated. See In re Subpoena Duces Tecum to American Broadcasting Companies, Inc., Concerning The People of the State of New York v. Ricardo Caputo ⁷, N.Y. Law Journal, June 8, 1995, at 37, col 3.

Furthermore, in this age of participatory journalism where news, commentary, and sensationalism have become one, the role of a journalist in the public's mind has become so entangled that it is often difficult to distinguish between news and entertainment. Although the newsgathering privilege is a fundamentally protected right, it should not be considered absolute or for that matter the unwritten "Eleventh...