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People v. Zwack

Other Lower Courts

June 25, 2001

The People of the State of New York, Plaintiff,
v.
Henry Zwack, Defendant. In the Matter of Capital Newspapers Division of the Hearst Corporation, Movant. In the Matter of Clear Channel Communications, Inc., Movant.

COUNSEL

McNamee, Lochner, Titus & Williams, P. C. (Michael J. Grygiel of counsel), for Clear Channel Communications, Inc., movant. William J. Dreyer for defendant.

OPINION

Patrick J. McGrath, J.

The Times Union and Clear Channel filed a motion on April

Page 762

26, 2001, seeking permission to be allowed to conduct audiovisual and still photographic coverage of the trial and also subsequent proceedings in the above criminal case. Both requests are based upon the argument that section 52 of the Civil Rights Law is unconstitutional, and assuming, arguendo, that it is not, it should not apply to still photography.

Both the People and defense have not submitted any papers in opposition and take no position on the motion. Section 52 of the Civil Rights Law provides in part that:

" No person, firm, association or corporation shall televise, broadcast, take motion pictures or arrange for the televising, broadcasting, or taking of motion pictures within this state of proceedings, in which the testimony of witnesses by subpoena or other compulsory process is or may be taken, conducted by a court, commission, committee, administrative agency or other tribunal in this state."

Since there is a strong public policy favoring open courts and public access that is evident from associated case law and legislative history (Press-Enterprise Co. v Superior Ct., 464 U.S. 501; Matter of Associated Press v Bell, 70 N.Y.2d 32, 37), section 52 of the Civil Rights Law should be strictly construed in this context (Matter of Rodriguez v Perales, 86 N.Y.2d 361, 368). In view of the above, this Court agrees with the movant that section 52 of the Civil Rights Law by its express terms does not prohibit still photographic coverage of in-court proceedings. The prohibition only relates to " televising, broadcasting, or taking of motion pictures," and not still photography. Therefore, the movant's request to conduct still photographic coverage of all trial and related proceedings is granted.

Next, movant, the owner of WXXA-TV/FOX 23 and WGY/810-AM, moves this Court for an order holding that, pursuant to the First Amendment of the United States Constitution and article I, § 8 of the New York State Constitution, WXXA-TV/FOX 23 and WGY/810-AM are authorized to provide audiovisual coverage of the trial and subsequent proceedings in the above case.

Movant acknowledges that Civil Rights Law § 52 " imposes an absolute, generalized ban on audiovisual coverage of trial court proceedings, no matter what the circumstances of the case or the assessment of the proceeding judge." And it contends, after lengthy argument with many supporting exhibits, that it is " unconstitutional."

Page 763

In support of its contention that Civil Rights Law § 52 is unconstitutional, movant cites two decisions which found the section unconstitutional: People v Boss (182 Misc.2d 700 [Sup Ct, Albany County 2000]); People v Schroedel (Sullivan County Ct 2001).

The Court finds that it has no authority to entertain movant's motion. " Because [movant] ha[s] no constitutional or statutory right to broadcast, [the court is] without authority to permit [it] to intervene ... Rather than moving in County Court for an order permitting audiovisual coverage of [the Zwack trial and subsequent proceedings, movant] should have commenced a declaratory judgment action in Supreme Court challenging the constitutionality of the statute ... (see, People v Langdon, 258 A.D.2d 937)." (Matter of Santiago v Bristol,273 A.D.2d 813, 814 [4th Dept. 2000].) Because neither the Appellate Division, Third Department, nor the Court of Appeals have announced a contrary ...


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