The opinion of the court was delivered by: Robert J. Collini, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Upon consideration of the People's motion (CPLR 2214 [d]), dated March 5, 2009, to compel compliance with a subpoena duces tecum issued by the District Attorney of Richmond County (CPL 610.20 ) to NBC News, and the response of NBC Universal (hereinafter "Respondent"), dated March 10, 2009, and oral argument by the parties on March 11, 2009 and March 13, 2009, it is decided as follows:
The defendant, who is awaiting trial on a count of Murder in the Second Degree (PL 125.25 ) and related charges*fn1, and her attorney elected to both submit to televised interviews with the Respondent. During the interviews, portions of which were broadcast on the NBC Today Show in a four-minute segment on September 18, 2008, the defendant recited her version of highly relevant facts in this case, including her discovery of the deceased.
The People contend that certain televised statements of the defendant are inconsistent with statements she made to police and Emergency Medical Service (EMS) personnel on December 2, 2007*fn2. Moreover, based on the Respondent's promotion of the segment (entitled, "Did fat jokes drive wife to murder?"), the People assert that although not aired, statements relating to motive may have been discussed in the unaired portions of the interview, as well as possible inconsistent statements.
In 1990, the Legislature enacted Civil Rights Law § 79-h (hereinafter "Shield Law") to codify the three-prong test set forth in O'Neill v. Oakgrove Construction, Inc., 71 NY2d 521, 527 (1988), which is applicable to both civil and criminal proceedings, to determine whether non-confidential material possessed by a news organization should be disclosed. Under the test, the party seeking disclosure must make a "clear and specific showing that the [information] is: (i) highly material and relevant; (ii) critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) not obtainable from any alternative source." People v. Combrest, 4 NY3d 341 (2005).
Through its written submission, the Respondent concedes the first and third prongs, but not the second, asserting that the People have not made a "clear and specific showing that the Outtakes contain information that is critical or necessary to the prosecution of the case" (Respondent's memorandum, p. 5). During oral argument on March 11, 2009, however, the Respondent further conceded that evidence of motive - as opposed to allegedly inconsistent statements by the defendant - would be critical in the instant case.
To support its argument as to the allegedly inconsistent statements made by the defendant (i.e., when the defendant's statements to police and EMS officials are compared to those she made to NBC journalists), the Respondent avers that inconsistent statements are of evidentiary value merely for impeachment purposes relative to credibility, and then only should the defendant chose to testify in the instant case, citing In re ABC, 189 Misc 2d 805 (Sup Ct, New York County 2001).What distinguishes the instant case from In re ABC - which pertains to statements made to a news organization by a key witness in an enterprise corruption case, but not the defendant - is that unlike a potential witness, a defendant's statement in a criminal case is always relevant. Possible prohibitions to actual admissibility at trial, which are not germane to this motion, would require a separate determination by the Court.
By virtue of its written submission, the Respondent asserts that because the defendant "denied" in the broadcast that she committed the crime charged, the analysis must stop there (Respondent's memorandum, p.10, n.1); however, it does not, as the defendant's statements, although not constituting a "confession" (Prince, Richardson on Evidence § 8-204 [Farrell, 11th ed.]), may very well amount to an admission under the law:
An admission must appear to be against the interest of the party at the time of trial, but need not be against interest at the time it was made. While an admission may be a declaration against interest, it is not necessarily so, for at the time it was made it may have been favorable to the declarant's interest. The disserving nature of the statement, when made, undoubtedly adds to its probative value (Mindlin v. Dorfman, 197 AD 770, 771 [1st Dept 1921]), but does not bear upon its admissibility [emphasis added].
Here, particularly in a circumstantial case, evidence of both the defendant's allegedly inconsistent statements and motive are highly probative. "Any act or declaration of the accused inconsistent with his innocence is admissible as an admission" (People v. Harris, 148 AD2d 469 [2d Dept 1989]). See also, CJI2d (NY), Motive: ". . . if you find from the evidence that the defendant had a motive to commit the crime charged, that is a circumstance you may wish to consider as tending to support a finding of guilt."
Initially, in its papers, the Respondent argued that the People lack specificity as to what, if anything, may have been stated by the defendant (or her attorney) in the footage that was not broadcasted. During oral argument, however, the Respondent agreed to submit the entire footage of both interviews to the Court for an in camera inspection to aid in its decision.
The Court is most cognizant of the Respondent's concerns, and weighs heavily the competing interests involved in a murder case that appears to be wholly circumstantial in nature. Clearly, the statutory intent of the Shield Law, as aptly noted by the Respondent, is to protect journalists from unnecessary and coercive legal processes, or from otherwise impeding their ...